Jamuna Prasad vs Thakur Ji Mahamaya Devi Virajman

Pankaj Mithal, J.—Heard Sri J.K. Mishra, learned counsel for the petitioner.

The decree passed in S.C.C. suit has been put in execution against one of the judgement debtors Ramdei.

The petitioner is one of the sons of the aforesaid judgement debtor Ramdei.

During the pendency of the above execution proceedings as the judgement debtor Ramdei died, the decree holders applied for bringing on record her heirs and legal representatives including the petitioner. The said application has been allowed by the order dated 05.03.2016 and the revision of the petitioner preferred against the same has been dismissed on 27.05.2016.

The petitioner has come up in this petition against the above orders dated 05.03.2016 and 27.05.2016.

In challenging the above orders, the argument is that the substitution application in respect of the deceased judgement debtor Ramdei was moved long after her death without an application for seeking condonation of delay in filing it but even then the court has permitted substitution.

It is not the case of the petitioner that he is not the son or the heir of the deceased judgement debtor and is not liable to be substituted in her place.

Once the above aspect of the matter is not disputed and the petitioner has rightly been substituted, he suffers no prejudice except for contending that as the delay in fling the substitution application was not condoned, the execution stood abated and cannot proceed against him.

The above contention or suggestion has no legal legs to stand.

The procedure of substitution of the parties in the event of death of either the plaintiff or the defendant or the appellant or the respondent as the case may be is provided under Rules 3 and 4 of Order 22 C.P.C. which also provides if substitution is not carried out within time, the proceedings of the suit or the appeal as the case may be shall abate.

Rule 12 Order 22 C.P.C. inter alia lays down that nothing in Rules 3 and 4 of Order 22 shall apply to proceedings in execution of a decree. In other words, the provisions of Rules 3 and 4 of Order 22 are not applicable to execution proceedings meaning thereby that the execution proceedings would not abate if the heirs and legal representatives of the deceased party to the execution proceedings are not brought on record within the time, if any, specified.

It can be explained in a different manner so as to mean that if after the filing of a execution proceedings in time, either the decree-holder or the judgement debtor dies and their legal representatives do not come on record, there would be no abatement of the execution proceedings. If there is no abatement of the execution proceedings they would remain pending on record of the court and as and when the heirs or legal representatives of the deceased party are brought on record, the execution would proceed further.

In view of the aforesaid position in law the execution once started within time would not abate due to death of a party or for want of substitution of the heirs and legal representatives rather it would remain pending with no progress until and unless someone as the heir or legal representative of the party comes on record and starts pursuing the same.

This is also the opinion of the Supreme Court in (1998) 3 Supreme Court Cases 149 V. Uthirapathi v. Ashrab Ali and others wherein it has been held that no time limit is prescribed for bringing on record the heirs and legal representatives of the parties in execution and therefore the proceedings would not abate and remain pending leaving it open in case of death of decree holder/judgement debtor to bring on record the heirs and legal representatives at any time.

In view of the aforesaid facts and circumstances, as the provisions of Rule 3 and 4 of Order 22 C.P.C. are not applicable to execution proceedings and there is no provision prescribing time for bringing on record the heirs and legal representatives of any deceased party to the execution or for the abatement of the proceedings, there was no necessity for moving any application for seeking condonation of delay for the purposes of substitution and the petitioner could have been brought on record at any time, notwithstanding the time gap between the death of the party and the filing of the application.

Accordingly, I find no merit in this petition and the same is dismissed with no order as to costs.