Jasminder Singh Kular and Others vs Manjit Singh and Others

Rakesh Kumar Jain, J.—A preliminary objection has been raised by counsel for respondents No. 2 and 3 as to "whether an application either under Order 22 Rules 3 or 4 of the Code of Civil Procedure, 1908 (hereinafter referred to as the "CPC") could be filed in the execution proceedings in view of Order 22 Rule 12 of the CPC"? The brief facts of the case are that one Kartar Singh had filed a suit for recovery of Rs. 49,770/- against Manjit Singh which was decreed on 15.12.2007 for Rs. 38,750/- along with interest @ 1% per month w.e.f. 01.06.2004 till the date of decree and with future interest @ 6% per annum from the date of decree till realization. The first appeal filed by Manjit Singh was dismissed on 24.03.2009 and during the pendency of the second appeal bearing RSA No. 4541 of 2009, the decree-holder Kartar Singh died on 10.01.2010. Jasminder Singh Kular, Jaswinder Kaur and Mohinder Pal Kaur filed an application bearing CM No. 858-C of 2011 for impleading them as legal heirs of Kartar Singh which was allowed, subject to all just exceptions for the purpose of the appeal.

The petitioners also filed application bearing CM No. 9801-C of 2011 under Order 22 Rule 4 of the C.P.C. alleging that though Kartar Singh left behind a son and two daughters, referred to above, but he had also executed a Will dated 29.12.2009, bequeathing his all immovable and moveable properties in favor of his son Jasminder Singh Kular and grandsons Tajinder Singh Kular and Diamond Kular. The RSA No. 4541 of 2009 was dismissed on 29.08.2011 on the basis of a compromise in which the following order was recorded by this Court:-

"At the very outset, learned counsel for appellant intends to withdraw the instant appeal on account of compromise between the parties. Learned counsel for respondent did not raise any objection, in this relevant connection.

In this view of the matter, the present appeal is dismissed.

Needless to mention that since the parties have compromised the matter, so, the execution petition would naturally become infructuous as well."

Thereafter, Mohinder Pal Kaur (daughter of Kartar Singh) filed another application bearing CM No. 13927-C of 2011 in the second appeal bearing RSA No. 4541 of 2009 under Order 41 Rule 21 read with Section 151 of the C.P.C. for re-calling the order dated 29.08.2011 by which the second appeal was disposed of. However, the said application was dismissed on 08.12.2011.

The petitioners filed another application bearing CM No. 8732-C of 2014 in CM No. 9801-C of 2011 in RSA No. 4541 of 2009 for disposal of CM No. 9801-C of 2011 by which they also wanted to be impleaded as legal heirs of deceased Kartar Singh on the basis of the Will. The said application was dismissed as withdrawn on 25.07.2014 with the following order:-

"At the very outset, learned counsel intends to withdraw the instant petition to enable the applicant-respondent to move a fresh application for impleading the LRs. of deceased Kartar Singh (respondent) before the Executing Court.

Dismissed as withdrawn with the aforesaid liberty, as prayed for.

Needless to mention, in case, the applicant moves such application, the same would be decided by the concerned court expeditiously and in accordance with law."

The petitioners then filed the application under Order 22 Rule 4 of the C.P.C. to implead them as legal heirs of Kartar Singh on the basis of the Will but the said application was contested by Mohinder Pal Kaur daughter of Kartar Singh. The said application has been dismissed by the learned Executing Court on 02.01.2014 on the ground that interest of the petitioners is adverse to the already impleaded legal heirs of Kartar Singh and if the applicants-petitioners had any right, they could always file a separate suit, if so advised, but insofar as the natural heirs of Kartar Singh are concerned, they have already been impleaded in the regular second appeal through CM No. 858-C of 2011 for the purpose of pursuing the second appeal.

Before this Court could have touched the merits of this case, a preliminary technical objection has been raised by counsel for respondents No. 2 and 3 that an application, filed either under Order 22 Rule 3 or 4 of the C.P.C., is not maintainable before the Executing Court. In this regard, he has referred to Order 22 Rule 12 of the C.P.C., which reads as under:-

"12. Application of Order to proceedings.-Nothing in rules 3, 4 and 8 shall apply to proceedings in execution of a decree of order."

Counsel for respondents No. 2 and 3 also relied upon a decision of this Court in the case of Yogeshwar Education Trust Vs. Simarjit Kaur and Others, .

In reply to this argument, learned counsel for the petitioners has submitted that Order 22 Rule 12 of the C.P.C. does not suggest that if the decree-holder dies during the pendency of the execution, then he cannot be replaced by his legal heirs to avail the benefit of the decree. It is submitted that rigours of Order 22 Rules 3, 4 and 8, by which the suit is abated, would not apply and if the decree-holder dies during the pendency of the execution, he can be replaced by his legal heirs.

I have heard learned counsel for the parties and perused the available record with their able assistance.

Before I decide the case on merits, I would decide this issue first and in order to appreciate the respective arguments of learned counsel for the parties, it would be relevant to refer to the following provisions of the CPC:-

"ORDER XXII

DEATH, MARRIAGE AND INSOLVENCY OF PARTIES

XXX XXX XXX XXX XXX XXX XXX XXX

XXX XXX XXX XXX XXX XXX XXX XXX

Procedure in case of death of one of several plaintiffs or of sole plaintiff.-(1) Where one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies and the right to the sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit.

(2) Where within the time limited by law no application is made under sub-rule (1), the suit shall abate so far as the deceased plaintiff is concerned, and, on the application of the defendant, the Court may award to him the costs which he may have incurred in defending the suit, to be recovered from the estate of the deceased plaintiff.

HIGH COURT AMENDMENT

Punjab, Haryana and Chandigarh.-In Order XXII, in rule 3, for sub-rule (2), substitute the following sub-rule, namely:-

"(2) Where within the time limited by law no application is made under sub-rule (1), the suit shall not abate as against the deceased plaintiff and the judgment may be pronounced notwithstanding his death which shall have the same effect as if it has been pronounced before the death took place, and the contract between the deceased and the pleader in that event shall continue to subsist.

Procedure in case of death of one of several defendants or of sole defendant- (I) Where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit.

(2) Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant.

(3) Where within the time limited by law no application is made under sub-rule (1), the suit shall abate as against the deceased defendant.

(4) The Court whenever it thinks fit, may exempt the plaintiff from the necessity of substituting the legal representatives of any such defendant who has failed to file a written statement or who, having filed it, has failed to appear and contest the suit at the hearing; and judgment may, in such case, be pronounced against the said defendant not withstanding the death of such defendant and shall have the same force and effect as if it has been pronounced before death took place.

(5) Where-

(a) the plaintiff was ignorant of the death of a defendant, and could not, for that reason, make an application for the substitution of the legal representative of the defendant under this rule within the period specified in the Limitation Act, 1963 (36 of 1963) and the suit has, in consequence, abated, and

(b) the plaintiff applies after the expiry of the period specified therefor in the Limitation Act, 1963 (36 of 1963), for setting aside the abatement and also for the admission of that application under section 5 of that Act on the ground that he had, by reason of such ignorance, sufficient cause for not making the application within the period specified in the said Act, the Court shall, in considering the application under the said section 5, have due regard to the fact of such ignorance, if proved.

to 7. xxx xxx xxx xxx xxx xxx xxx xxx

When plaintiffs insolvency bars suit-(1) The insolvency of a plaintiff in any suit which the assignee or receiver might maintain for the benefit of his creditors, shall not cause the suit to abate, unless such assignee or receiver declines to continue the suit or (unless for any special reason the Court otherwise directs) to give security for the costs thereof within such time as the Court may direct.

(2) Procedure where assignee fails to continue suit, or give security-Where the assignee or receiver neglects or refuses to continue the suit and to give such security within the time so ordered, the defendant may apply for the dismissal of the suit on the ground of the plaintiffs insolvency, and the Court may make an order dismissing the suit and awarding to the defendant the costs which he has insured in defending the same to be proved as a debt against the plaintiffs estate."

It may be pertinent to mention that Order 22 Rule 3 of the C.P.C. is applied where an application is to be filed on behalf of the legal representatives of the deceased plaintiff to implead them as party. Order 22 Rule 4 of the C.P.C. is applicable in the case of defendant and Order 22 Rule 8 of the C.P.C. deals with the insolvency of the plaintiff.

Order 22 Rule 3(i) of the C.P.C. provides that where one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs or plaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies and the right to sue survives, the Court may allow legal representatives of the deceased plaintiff to be made a party to proceed with the suit. Thus, Order 22 Rule 3(i) of the C.P.C. is an enabling provision, whereas Order 22 Rule 3(2) of the C.P.C. provides the consequence that if the time limited by the law for filing the application is not adhered to, the suit shall abate so far as the deceased plaintiff is concerned and the defendant may also ask for costs which might be recovered from the estate of the deceased plaintiff.

In order to be more precise, the limitation to file such an application is 90 days as per Article 120 of the Limitation Act, 1963 which is to be counted from the date of death of the plaintiff/appellant or defendant/respondent, as the case may be.

At this stage, I may clarify that the Punjab and Haryana High Court, in exercise of its powers under Section 122 of the C.P.C., has substituted Order 22 Rule 3 sub-rule 2 by way of notification No. G.S.R. 14/C.A. 5/1908/S. 112/92 dated 21.02.1992 to the effect that if the application is not filed within the limitation, the suit shall not abate as against the deceased plaintiff and the judgment may be pronounced notwithstanding his death which shall have the same effect as if it has been pronounced before the death took place and the contract between the deceased and the pleader in that event shall continue to subsist. However, in the case of Jawala Singh v. Harnam Singh, 1993 P.L.J. 83, it was held by this Court that the amendment of the year 1992 by the Punjab & Haryana High Court in Order 22 Rule 3(2) of the C.P.C. is prospective in nature and would not apply retrospectively to revive the appeal which already stood abated under the prevalent law at that time.

Similarly, Order 22 Rule 4(3) of the C.P.C., applicable in case of defendant, further provides that where within the time prescribed by law, no application is made under Order 22 Rule 4(1), the suit shall abate as against the deceased defendant but again there is an amendment of this Court in Order 22 Rule 4 of the C.P.C. vide Punjab Govt. Gazette Part II dated 11.04.1975 wherein it has been provided that if within the time limited by law, no application is made under Order 22 Rule 4(1) of the C.P.C., the suit shall not abate as against the deceased defendant and judgment be pronounced notwithstanding the death and shall have the same force and effect as if it had been pronounced before the death took place. This has also been noticed in the case of Saraswati Devi and others v. Hazari Lal and others, 1989 P.L.J. 670 that such a suit would not abate but in the case of Banta Singh v. Santi and others 1977 P.L.J. 452, the Division Bench of this Court has observed that the amendment dated 17.03.1975 would operate prospectively and if not expressly made to operate retrospectively to revive even the appeal which have already stood abated long before the enforcement of the notification dated 17.03.1975.

As far as Order 22 Rule 8 is concerned, where subsequent to the institution of the suit, the plaintiff is adjudged as an insolvent, the suit is not to be dismissed without notice to the official receiver to appear and state his willingness or otherwise to continue the suit. Order 22 Rule 8(2) of the C.P.C. further provides that where the assignee or receiver neglects or refuses to continue the suit and to give such security within the time so'' ordered, the defendant may apply for the dismissal of the suit on the ground of the plaintiffs insolvency and the Court may make an order dismissing the suit, awarding to the defendant the costs which he might have incurred in defending the suit, therefore, this provision does not apply to the defendant but to an insolvent plaintiff.

At this stage, I would also like to refer to Order 22 Rule 6 of the C.P.C., which reads as under:-

"6. No abatement by reason of death after hearing.-Notwithstanding anything contained in the foregoing rules, whether the cause of action survives or not, there shall be no abatement by reason of the death of either party between the conclusion of the hearing and the pronouncing of the judgment, but judgment may in such case be pronounced notwithstanding the death and shall have the same force and effect as if it had been pronounced before the death took place."

According to the aforesaid provision, there would be no abatement by reason of the death of either party which took place between the conclusion of the hearing and the pronouncement of the judgment and the judgment in such a case could be pronounced notwithstanding the death and shall have the same force and effect as if it had been pronounced before the death took place.

From the resume of the aforesaid discussion, it is clear that Order 22 Rule 3(2), Order 22 Rule 4(3) and Order 22 Rule 8(2) of the C.P.C. are all consequential provisions that in case the parry to the suit, as the case may be, does not resort to Order 22 Rule 3(1), Order 22 Rule 4(1) and Order 22 Rule 8(1) of the C.P.C., which are enabling provisions to file the application to implead the legal representatives, the effect thereof would be of abatement, however, there are amendments by this Court vide notification dated 21.02.1992 in Order 22 Rule 3(2) of the C.P.C. and vide notification dated 17.03.1975 in Order 22 Rule 4(3) of the C.P.C. which save the suit from abatement but there is no such amendment in Order 22 Rule 8 and Order 22 Rule 12 of the C.P.C. which are also applicable to this Court.

Order 22 Rule 12 of the C.P.C. says that Order 22 Rules 3, 4 and 8 of the C.P.C. would not apply to the proceedings in execution of a decree or order, meaning thereby that if the death occurs either of the plaintiff/decree holder or the defendant/judgment debtor during the pendency of the execution, it would not abate and the execution can proceed after the death of decree-holder after impleading the legal heirs.

The judgment in Yogeshwar Education Trust''s case (supra) is rather in favor of the petitioners because in the said case, a suit for preemption was decreed by the trial Court on 20.10.1972; the preemptors took the physical possession of the land in May 1982 and sold the same in favor of the petitioners in that case on 04.07.1982. On 15.05.1988, the vendees, i.e. Sewa Singh, Dalbir Singh and Darbara Singh, filed an application under Section 144 of the C.P.C. for restitution of possession of the land which was taken by the pre-emptors in May, 1982. Two of the vendees, namely, Sewa Singh and Dalbir Singh died on 07.06.1997 and 16.02.1997 respectively but the application for restitution of possession was filed by all the three vendees and it was only on 14.05.2002 that an application was filed by the legal representatives of Sewa Singh and Dalbir Singh to implead themselves as parties in the restitution application. The Executing Court, vide order dated 20.11.2002, permitted the legal representatives of deceased Sewa Singh and Dalbir Singh to proceed further with the application filed under Section 144 of the C.P.C. and the said order was challenged by the petitioners therein by way of the revision petition. In this background, it was held by this Court that the application filed under Section 144 of the C.P.C. for restitution of possession is in the nature of execution and once that is so, then whether the legal representatives are brought on record at the time of filing of the application or thereafter is wholly in consequential as the provisions of Order 21 Rules 3 and 4 are not applicable in execution proceedings as provided under Order 22 Rule 12 of the Civil Procedure Code. In the said case, the argument raised by the respondent that the application for impleading legal representatives has been filed after three years was rejected on the ground that the decree-holder could seek execution within 12 years of the decree and the application of the legal representatives was found to be within the said period. Consequently, the order of the Executing Court was upheld.

Now coming back to the facts and circumstances of the present case wherein the application under Order 22 Rule 4 of the C.P.C. has been filed on the basis of a registered Will dated 29.12.2009, the learned Court below dismissed the application on the ground that since the interest of the applicants is adverse to the interest of the already impleaded legal representatives, it will open a new front of litigation, whereas the legal representatives are impleaded only for the purpose of pursuing the litigation and the title or the status of the legal representatives is not to be decided while deciding the application for impleading LRs. It was also observed that the petitioners may file a separate suit, if so advised, on the basis of the Will but they are not entitled to be impleaded.

The order of the learned Court below is patently erroneous in view of the decision of this Court in the case of Gopal Singh Vs. Sher Singh and Others, in which it has been held that where there is a dispute inter se the legal heirs over execution of decree, it cannot be decided by the Executing Court and the execution cannot be deferred on that count.

In the case of S. Charanjit Singh and Another Vs. Bharatinder Singh and Others, , all the legal heirs were impleaded to represent the estate of deceased while leaving the question about the genuineness and validity of the Will open.

Actually, there is no dispute with regard to the execution of the decree and even one of the legal heirs can execute the decree as he shall be taking the estate of the deceased subject to rights of the rightful claimant which may be determined in any subsequent suit. In view of the aforesaid position of law, the order passed by the learned Court below is totally erroneous. Resultantly, the present revision petition is hereby allowed and the impugned order is hereby set aside. However, the parties to the lis, who are claiming their rights over the property, may, if so advised, raise their dispute elsewhere in the separate proceedings.