Jampanivari Dharmasatram vs Konedena Sanjeevamma and Others

Seetharam Reddy, J.—The question that is debated in this revision is whether against a dead person, who is the judgment-debtor an execution petition can be filed and whether his legal representatives can be brought on record for the purpose of executing the decree, though the deceased died prior to filing of the execution petition.

It is held by the lower court that the judgment debtor died prior to the filing of the execution petition. It is not, however, stated as to how long prior to the filing of the execution petition, he died. However, it is only on this simple ground that against a dead person the decree cannot be executed in lower court denied the E.P. This is erroneous. Rule 12 of Order 22 CPC on which basis the learned Counsel for Petitioner argues, reads:

Application of order to proceedings: Nothing in Rules 3, 4 and 8 shall apply to proceedings in execution of a decree or order.

The learned Counsel argued that Rules 3, 4 and 8 of the said order are not applicable to execution proceedings and therefore the decree can be executed against a dead person by getting the legal representatives for the purposes of execution. He relied upon a decision of the Allahabad High Court reported in Budh Singh and Others Vs. 8th Additional District Judge, Meerut and Others, wherein it was held:

According to Order 22, Rules 3, 4 and 8 do not apply to proceedings in execution of a decree or order. This means that in relation to execution, the legal representatives are not called upon to seek substitution upon the death of the decree-holder or judgment debtor. Where pending execution of the decree the decree-holder dies, it is open to the legal representatives claiming interest in the estate of the deceased to come up just by way of information to the executing court and thereafter proceed with the execution. Since under the CPC no application for substitution or otherwise is required to be made by such legal representatives, it cannot axe claimed that the bar of Article 137 is attracted. Article 137 can be invoked where an application is required under the law to be necessarily made or in order to confer or create a right to proceed in a matter. But where no such application is required by law the bar of limitation is inapplicable.

The learned Counsel argues that same is the position when the judgment debtor dies prior to the execution being levied, and the legal representatives can be brought on record as they do not come as substitution upon the death of the judgment-debtor, against whom nevertheless the decree can be executed. I see substance in this contention of the learned Counsel for the Petitioner. Reading the provisions enacted in Rule 12 of Order 22 CPC and also in the light of the decision cited above, it is quite evident that even if the judgment debtor dies prior to the execution petition being filed, still the decree is executable and his legal representatives can be brought on record, though not as substitution, upon the death of the judgment debtor, to enforce the decree. Therefore, it is competent for the revisionist herein to levy execution against the original judgment-debtor who is no more, but against his legal representatives.

Hence the order under revision, which is erroneous, is set aside and the matter is remitted back to the executing court to proceed further in the light of the observations made above. However, the learned Counsel for the Respondent submitted that her right to raise objections with regard to limitation may be preserved, as in this case according to her, by the time the petition to bring legal representatives on record was filed, it was beyond twelve years from the date of the death of the judgment-debtor and therefore, it gets barred by limitation. This right is reserved and the executing court can as well go into it and adjudicate upon the same.

Civil Revision Petition is allowed and the case is remanded to Executing Court. No costs.