Mathai vs Joy

Balakrishna Menon, J.—The question for decision in this C.R.P. is whether a transferee executing Court is competent to permit the legal representatives of the deceased decree holder to continue the execution proceedings without obtaining an order under Order XXI, Rule 16 C.R.C. from the Court which passed the decree.

The decree in the present case was passed by the Munsiff''s Court, Punalur for recovery of a sum of Rs. 4,136 and interest thereon from the judgment-debtors. The decree was transferred for execution to the Munsiff''s Court, Ettumanoor. The decree holder died on 14th April 1985 after instituting execution proceedings in the Munsiff''s Court, Ettumanoor. The children of the decree holder filed two applications in the execution Court E.A. 57/85 and E.A. 152/85-for bringing them on record as the legal representatives of the deceased decree holder and to permit them to continue the execution proceedings. The transferee execution Court by order, dated 21st December 1985 allowed these petitions and permitted the legal representatives to continue the execution proceedings. It is against this the judgment debtors have come up in revision.

Section 42 of the CPC enacts that a Court executing a decree sent to it shall have the same powers in executing such decree as if it had been passed by itself. This general power of the transferee executing Court is subject to Sub-Section (4) wherein it is expressly provided that a Court to which a decree is sent for execution shall not have the power to order execution at the instance of the transferee of the decree. Order XXI, Rule 16 CPC empowers the transferee of a decree by assignment in writing or by operation of law to apply for execution of the decree to the Court which passed the decree and that Court will permit the decree to be executed in the same manner and subject to the same conditions as if the application were made by the decree holder himself. It is clear from Rule 12 of Order XXII that the provisions of rules 3, 4 and 8 of the said Order do not apply to execution proceedings and the transferee executing Court cannot by recourse to these provisions of Order XXII bring on record the legal representatives of a deceased decree holder and permit them to continue the execution proceedings.

Since, however, the execution proceedings had been initiated by the decree holder himself, Order XXI, Rule 16 CPC permits the legal representatives to apply to the Court which passed the decree for an order allowing them to continue the execution proceedings. A Full Bench of the Madras High Court in the decision in Venkatachalam Chetti v. Ramaswamy Servai ILR (1932) Mad 352 stated at page 366:

If Rule 3 of Order XXII does not apply, it is argued that there is no procedure provided in the Code for bringing on record the legal representative of a deceased decree holder in execution proceedings. It is true that there is no specific machinery in the Code for that purpose, but does it necessarily follow from this that the Code prohibits the legal representative from making an application to continue the pending petition after substituting his name in it? I think not. If Rule 3 does not apply, then obviously there can be no objection for proceeding u/s 146 of the Code and Order XXI, Rule 16. u/s 146, there being no other procedure provided, a legal representative of a decree holder may make an application which may be made by the decree holder, and under Order XXI, Rule 16, where a decree is transferred by assignment or operation of law as happens in the case of the death of a decree holder, the transferee may apply for the execution of the decree. Gases have held that, where a decree holder dies or transfers his decree pending the execution application filed by him, then the transferee decree holder including his heir is entitled under Order XXI, Rule 16, to apply for continuing the pending execution application by substituting his name in it and that such an application is not to be considered as a fresh execution application.

A Division Bench of the Calcutta High Court in Sailendra Nath Ghose and Others Vs. Surendra Nath De and Another, held that in a case where the decree holder dies before the decree is transferred, the legal representatives have to apply not really for substitution, but to have their names brought on the record and to have the decree transferred for execution. In a case, however, where the death takes place after the decree is already transferred for execution, the legal representatives may apply to the execution Court to continue the execution proceedings and subsequently produce from the Court which passed the decree the necessary orders under Order XXI, Rule 16 Code of Civil Procedure. The decision of the Madras High Court in Venkatachalam Chetti''s case (1932) ILR Mad 352, was followed by the Bombay High Court in Brijmohandas Damodardas Vs. Sadashiv Laxman Naik, . It is stated at page 6:

It follows from this that when a decree is transferred to Anr. Court and the decree holder dies before starting the execution proceedings in that Court, his legal representatives cannot institute the execution proceedings there until they obtain an order from the Court which passed the decree under Order 21, Rule 16, Code of Civil Procedure. It was once thought that when a decree holder dies during the pendency of the execution proceedings his legal representative cannot continue those proceedings, but must start fresh proceedings under order 21, Rule 16: 50 Mad 1. But that was overruled by the Full Bench of the Madras High Court in 55 Mad. 352 and it was held that it was open to the legal representative of a deceased decree holder to continue the execution proceedings already started by him. The same view was taken by this Court in 33 Bom.L.R. 818, where it was held that an application to execute a decree filed by the decree holder can, on his death, be continued by his son and heir, provided the heir first obtained an order of the Court under Order 21, Rule 16, Code of Civil Procedure.

A Division Bench of the Patna High Court in Sukhdeo Bhagat v. Bishwanath Singh, following the Full Bench decision of the Madras High Court in Venkatachalam Chetti''s case ILR (1932) Mad 352 held where a decree holder dies pending the execution proceedings, his representative can get his name substituted and continue the execution proceedings on obtaining an under Order XXI, Rule 16 CPC from the Court which passed the decree.

For the aforesaid reasons it cannot be said that the Court below was wrong in bringing on record the legal representatives of the deceased decree holder in the execution proceedings. But the execution can be proceeded with only after the legal representatives obtain an order for such continuance as per the provisions of Order XXI, Rule 16 from the Court which passed the decree. I therefore direct that further execution can be proceeded with only after the legal representatives apply for and obtain an order from the Court which passed the decree permitting them to continue the execution proceedings.

The C.R.P. is disposed of as above. No costs.