Jai Bhagwani Gupta vs Madan Lal

Manoj K. Tiwari, J

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

This is tenant's/judgment debtor's petition under Article 227 of the Constitution against the order dated 14.10.2013 passed by executing Court in SCC Execution Case No. 06 of 1992 and the judgment dated 7.12.2018 passed by revisional Court in Civil Revision No. 08 of 2014.

Petitioner is tenant in a property, which was owned by one Mr. Brij Kishore. Mr. Brij Kishore filed a suit for eviction and arrears of rent before Small Cause Court, Dehradun, which was registered as SCC Suit No.8 of 1987. The said suit was decreed vide judgment dated 24.06.1992. Mr. Brij Kishore (decree holder) filed Execution Case No. 06 of 1992, which is still pending. During pendency of the aforesaid execution case, the decree holder (Brij Kishore) died on 22.01.1999.

After death of late Brij Kishore, his sister Smt. Basanti Devi moved an application under section 146 C.P.C. on the strength of a Will executed on 16.04.1998 by late Brij Kishore in her favour, whereby she sought permission to continue the execution case after making necessary amendment in the execution application. The said application was marked as Paper No. 33-C.

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 Madan Lal (respondent herein) filed one application (Paper No. 53-A) seeking necessary amendment in the application (Paper No. 33-C) filed by his mother for adding his name in place of proposed decree holder (Basanti Devi). Respondent relied upon a registered Will said to be executed by late Basanti Devi (his mother) in his favour on 25.02.2003. Petitioner filed objection to the said application also.

Learned executing Court allowed respondent's application (Paper No. 53-A) vide order dated 14.10.2013 subject to payment of cost of Rs.100/-, by holding that as the application (Paper No. 33-C) is pending since 25.08.2003, therefore, in the interest of justice, it is necessary to permit the respondent to amend the said application in view of demise of the original applicant.

Petitioner challenged executing Court's order by filing revision, which has been dismissed by learned IIIrd Additional District Judge, Dehradun vide judgment and order 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.

It has come on record that a competent Court has issued probate in respect of the Will executed by original decree holder (late Brij Kishore) in favour of his sister Basanti Devi and also the Will executed by Late Basanti Devi in favour of her son (respondent herein). Thus, validity of Will is no longer under cloud.

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."

I have gone through the impugned orders passed by learned Courts below. By the order dated 14.10.2013, learned executing Court has allowed the application filed by respondent seeking leave to amend the application (Paper No. 33-C) filed by his mother in the year 2003. Since competent Court has granted probate regarding the Will executed by original decree holder in favour of Basanti Devi and also the subsequent Will executed by Basanti Devi in favour of the respondent, therefore, I find no infirmity in the order passed by the executing Court. As held by Hon'ble Supreme Court in the case of V. Uthirapathi (Supra) execution petition does not abate on account of death of the decree holder and his legal representative may come on record at any time.

In such view of the matter, the executing Court was justified in permitting the respondent to make necessary amendment in the application (Paper No. 33-C) to ensure that the respondent, who is legal representative of the decree holder, continues the execution proceedings. Thus, the revisional Court was justified in dismissing the revision petition filed by the petitioner.

In such view of the matter, this Court finds no reason to interfere with the orders passed by learned Courts below.

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.