Jai Bhagwani Gupta vs Madan Lal

Manoj K. Tiwari, J

Rejoinder Affidavit filed by the petitioner in Court is taken on record.

Petitioner is the tenant/judgment debtor, who has filed this petition under Article 227 of the Constitution challenging the order dated 25.10.2013 passed by the executing Court in SCC Execution Case No. 06 of 1992 and also the judgment and order dated 7.12.2018 passed by IIIrd Additional District Judge, Dehradun in Civil Revision No. 07 of 2014.

Petitioner is tenant in respect of a property, which was owned by Brij Kishore. Brij Kishore filed a suit for eviction and arrears of rent against the petitioner before Small Cause Court, Dehradun, which was registered as SCC Suit No. 08 of 1987. Petitioner contested the suit, but the suit was decreed in favour of Brij Kishore. The decree holder put the decree to execution in the year 1992 by filing Execution Case No.06 of 1992. During pendency of the Execution Case Brij Kishore (decree holder) died on 22.01.1999.

Smt. Basanti Devi, sister of Brij Kishore filed an application (Paper No. 33-C) under Section 146 C.P.C. seeking permission to continue the Execution Case by making necessary amendment in the Execution Application. She relied upon a Will executed by Brij Kishore in her favour on 16.04.1998. No order could be passed on the application (Paper No. 33-C) filed by Smt. Basanti Devi during her lifetime and she also died on 19.08.2006 during pendency of the Execution Case No. 06 of 1992.

Petitioner filed objection to the said application of Basanti Devi contending that the application is barred by limitation; there is no provision for substitution of decree holder except in case of assignment of decree; the Will executed in favour of Basanti Devi has not been proved. During pendency of the aforesaid application (Paper No. 33-C), Smt. Basanti Devi also died on 19.08.2006.

After death of Basanti Devi, her son (respondent herein) moved an application (Paper No. 53-A) seeking leave to amend the application (Paper No. 33-C) filed by late Basanti Devi for adding his name. Said application was allowed by executing Court on 14. 10.2013. Revision filed against said order was also dismissed on 07.12.2018.

The executing Court allowed the application (Paper No. 33-C), vide order dated 25.10.2013 by holding that the execution proceedings are not abated due to death of decree holder. Petitioner, thereafter, challenged executing Court's order by filing Civil Revision No. 07 of 2014, which too has been dismissed by learned IIIrd Additional District Judge, Dehradun vide judgment dated 07.12.2018. Thus, feeling aggrieved by these two orders petitioner has approached this Court.

Heard learned counsel for the parties and perused the record.

Learned counsel for the petitioner submits that executing Court has not considered the objection filed by the petitioner, wherein the question of maintainability of the application (Paper No. 33-C) was raised and it was further submitted that the said application is barred by limitation, as it was filed after three years of death of decree holder (Brij Kishore).

A bare perusal of the order passed by the executing Court on 25.10.2013 indicates that the objection raised by the petitioner has been considered and discussed. Learned trial Court has held that execution proceedings do not abate due to non filing of appropriate application within 90 days, as the provisions contained in Rule 3 & 4 of Order 22 C.P.C. do not apply to execution proceedings in view of Order 22 Rule 12 C.P.C.

Learned revisional Court has affirmed the order passed by learned executing Court by holding that probate has been issued by competent Court in respect of the Will executed by late Brij Kishore in favour of Basanti Devi and also the Will executed by late Basanti Devi in favour of Madan Lal (respondent herein). The judgment debtor is not claiming any ownership right over the suit property and his status is only that of a tenant. Learned executing Court has allowed the application (Paper No. 33-C) after giving opportunity of hearing to the petitioner.

Learned counsel for the petitioner does not dispute the fact that probate has been granted in respect of both the Wills, one executed by Brij Kishore and another executed by Basanti Devi.

It is well settled that decision of probate Court is a judgment in rem, which not only binds the parties to the probate proceedings, but also binds the whole world as held by Hon'ble Supreme Court in the case of Smt. Rukmani Devi and others Vs. Narendra Lal Gupta, reported in AIR 1984 SC 1866. Paragraph no. 2 of the said judgment is extracted below:-

"2. The facts which are not in dispute are that in the petition moved by the respondent for obtaining the Probate of the will he had cited the appellants and Smt Kamla Devi as near relations. The citation of the application was issued to the appellants and it is conceded that the appellants did not choose to appear and contest the petition for grant of Probate. If the appellants did not contest the proceedings for grant of Probate, can they now be permitted to question the validity of the will by a collateral attack in different proceedings. It is well settled that the decision of the Probate court is a judgment in rem. The High Court rightly held that till the order granting Probate remains in force it is conclusive as to the execution and validity of the will till the grant of Probate is revoked. Apart from the fact that a decision of the Probate court would be a judgment in rem not only binding on the parties to the Probate proceedings but it will be binding on the whole world. Therefore, a solemn duty is cast on the Probate court. Section 41 of the Indian Evidence Act, 1872 provides that a final judgment or order of a competent court in the exercise of Probate jurisdiction is conclusive proof of what is decided therein that is about the genuineness of the will. To be precise, a Probate granted by a competent court is conclusive of the validity of such will until it is revoked and no evidence can be admitted to impeach it except in a proceeding taken for revoking the Probate. Apart from anything else, the citation having been issued to the appellants and having been served upon them, their failure to enter a caveat to contest the proceedings would preclude them from contesting the validity of the will in other proceedings. In Surinder Kumar v. Gian Chand this Court allowed an application for admission of additional evidence to place the Probate of the will on record. The Court after allowing the application held that since will has been admitted to Probate any infirmity in the matter of Probate of the will due to the want of proper attestation of the will as required by Section 63(1)(c) of the Indian Succession Act would be removed because the order admitting the will to the Probate will operate as a judgment in rem. Therefore the High Court was perfectly justified in reversing the decision of the executing court directing the respondent to lead evidence to prove the genuineness of the will."

Petitioner is not claiming any ownership right in respect of the property in question and his status is only that of a tenant. Disputed question of title cannot be considered by a Small Cause Court, moreover, the impugned order emanates from execution proceedings and an executing Court cannot go beyond the decree.

Their Lordships of Hon'ble Supreme Court have held in the case of V. Uthirapathi v. Ashrab Ali reported in (1998) 3 SCC 148, that death of decree holder or judgment debtor during the pendency of the execution proceedings will not result into abatement and further that legal representatives of the deceased can come on record at any time, as there is no limitation period prescribed for the purpose. Paragraph Nos. 10 to 15 of the said judgment are extracted below:-

"10. If during the pendency of a regular execution proceeding filed on the basis of a decree or order of a civil court, the decree-holder or the judgment-debtor dies and his legal representatives are not brought on record within ninety days, can the civil court dismiss the execution petition as abated?

Order 22 Rule 12 of the Code of Civil Procedure reads as follows:

"Order 22 Rule 12: Application of order to proceedings.-Nothing in Rules 3, 4 and 8 shall apply to proceedings in execution of a decree or order."

In other words, the normal principle arising in a suit - before the decree is passed - that the legal representatives are to be brought on record within a particular period and if not, the suit could abate, - is not applicable to cases of death of the decree-holder or the judgment-debtor in execution proceedings.

In Venkatachalam Chetti v. Ramaswami Servai a Full Bench of the Madras High Court has held that this rule enacts that the penalty of abatement shall not attach to execution proceedings. Mulla's Commentary on CPC [(Vol. 3) p. 2085 (15th Edn., 1997)] refers to a large number of judgments of the High Courts and says:

"Rule 12 engrafts an exemption which provides that where a party to execution proceedings dies during its pendency, provisions as to abatement do not apply. The Rule is, therefore, for the benefit of the decree-holder, for his heirs need not take steps for substitution under Rule 2 but may apply immediately or at any time while the proceeding is pending, to carry on the proceeding or they may file a fresh execution application." (emphasis supplied)

In our opinion, the above statement of law in Mulla's Commentary on CPC, correctly represents the legal position relating to the procedure to be adopted by the parties in execution proceedings and as to the powers of the civil court.

It is clear, therefore, that if after the filing of an execution petition in time, the decree-holder dies and his legal representatives do not come on record - or the judgment-debtor dies and his legal representatives are not brought on record, then there is no abatement of the execution petition. If there is no abatement, the position in the eye of law is that the execution petition remains pending on the file of the execution court. If it remains pending and if no time-limit is prescribed to bring the legal representatives on record in execution proceedings, it is open in case of death of the decree-holder, for his legal representative to come on record at any time. The execution application cannot even be dismissed for default behind the back of the decree-holder's legal representatives. In case of death of the judgment-debtor, the decree-holder could file an application to bring the legal representatives of the judgment-debtor on record, at any time. Of course, in case of death of judgment-debtor, the Court can fix a reasonable time for the said purpose and if the decree-holder does not file an application for the aforesaid purpose, the Court can dismiss the execution petition for default. But in any event the execution petition cannot be dismissed as abated. Alternatively, it is also open to the decree-holder's legal representatives, to file a fresh execution petition in case of death of the decree-holder; or, in case of death of the judgment-debtor, the decree-holder can file a fresh execution petition impleading the legal representatives of the judgment-debtor; such a fresh execution petition, if filed, is, in law, only a continuation of the pending execution petition - the one which was filed in time by the decree-holder initially. This is the position under the Code of Civil Procedure."

Learned counsel for the petitioner then submits that the original decree holder (Brij Kishore) had transferred the suit property to two persons, namely, Chhedi Lal and Sanjay Kumar in the year 1986, therefore, late Brij Kishore had no right, title or interest whatsoever left in the suit property, therefore, he could not have executed a Will in favour of Basanti Devi. She further submits that Brij Kishore had also executed a Will in favour of Mr. Sunil Kumar in respect of suit property; therefore, no title could have passed to late Basanti Devi through a subsequent Will. This contention raised by learned counsel for the petitioner is bereft of merit. Firstly, this contention was not raised by the petitioner in his objection before the executing Court; therefore, new plea cannot be raised for the first time in proceedings under Article 227 of the Constitution. Moreover, eviction suit was decreed against the petitioner on 24.06.1992, but petitioner never raised this plea before trial Court. Even otherwise also, once the suit for eviction was decreed against the petitioner, thereafter it is not open to him to dispute title of the decree holder during execution proceedings.

I have perused the order passed by the executing Court as well as the judgment rendered by revisional Court. Learned executing Court has given cogent reason for allowing the application (Paper No. 33-C) by correctly applying the law declared by Hon'ble Supreme Court. The revisional Court was justified in dismissing the revision petition filed by the petitioner.

In such view of the matter, this Court does not find any scope for interference with the judgment and orders passed by learned Courts below in exercise of supervisory jurisdiction under Article 227 of the Constitution.

Accordingly, the writ petition fails and is dismissed. No order as to costs.

Since the decree sought to be executed was passed on 24.06.1992 and a period of more than 27 years has elapsed, therefore, learned executing Court is directed to decide the execution case as early as possible, but not later than six months from the date of production of certified copy of this order.