Muthiah alias Gandhi and Others vs Subbiah Chettiar by Power agent Sevugan Chettiar and Others

Shanmukham, J.—The petitioners are some of legal representatives of the judgment-debtor (first defendant in the suit). They were

unsuccessful in their plea that the decree was barred by time. Hence, this revision.

The facts to be noticed are as follows : The suit, O.S. 14 of 1967 was decreed on 16th September, 1967. It is a money decree. The first

respondent-assignee decree-holder filed E.P. 37 of 1972 for sale of the first defendant''s immovable property. The execution petition was stayed

pending the appeal, A.S. 769 of 1974, on the file of this Court. The appeal was disposed of on 2nd March, 1981. On 8th February, 1982, the

Court below issued notice to both the parties for the hearing on 30th January, 1982. On 30th January, 1982, the sole respondent (first defendant)

was reported dead, it was adjourned to 10th February, 1982. After some adjournments for the respondents to take steps, the execution petition

was dismissed on 30th March, 1982, and attachment was also raised, as ho steps were taken. On 21st April, 1982 the following order was

passed:

Restored to file. Legal representative petition filed and pending. Call on 19th June, 1982.

The application to bring on record the legal representatives was ordered on 23rd April, 1984, and till then, execution petition was pending.

Immediately on allowing the application to implead the legal representatives the execution petition was adjourned to 29th June, 1984 for settlement

of proclamation. It may also ,be stated that another execution petition E.P. 8 of 1974 was also pending and that a common order was passed on

both the applications to bring on record the legal representatives in E.P. 57 of 1974 and E.P. 8 of 1974.

It is the order made on 23rd April, 1984 in the execution petition that is challenged in the revision.

The principal contention is that at the time when the execution petition was restored, there was no respondent on record as the sole respondent

in the execution petition was already dead, that the execution petition without a respondent is not maintainable and that therefore the order

restoring the execution petition is not sustainable in law. It is therefore submitted that at the time when the application for impleading legal

representatives was ordered, the decree was barred by time, and therefore, the order on the execution petition dated 23rd April, 1984, is equally

bad in law.

5.After careful consideration, I find the above contention is not sound. Section 50 alone prescribes the procedure to proceed against the legal

representatives of the deceased judgment-debtor It is relevant to notice that there is no such procedure in Order 21, Civil Procedure Code.

Strictly, it is not a case of bringing the legal representatives of the judgment-debtor on record, but an application to execute the decree against the

legal representatives of the deceased judgment debtor, subject to Sub-section (2) of Section 50. If so, when the execution petition was dismissed,

for not taking steps, the court has ample jurisdiction to restore it as long as the decree is put in execution before it is barred by time. Unlike a suit

getting abated under Order 22, Rule 4(3) the decree retains its force till it is barred by time. Above all, it is seen from the records that the court

below dismissed the execution petition for default because it was not brought to its notice that the petition to proceed against the legal

representatives has since been filed.

A reference to the orders made in the execution reveals that pending the appeal A.S.764 of 1974, there was an injunction restraining the

respondents from bringing the suit property to sale in pursuance of the decree passed in O.S. 14 of 1967. Interim injunction was ordered on 10th

December, 1976 and it was made absolute by order dated 4th October, 1977. I have already referred to the fact that the appeal itself was

disposed of on 2nd March, 1981. Therefore, there was an injunction restraining the respondent from executing the decree from 10th December,

1976 till 9th April, 1981. Section 15(1) of the Limitation Act provides:

In computing the period of limitation for any suit or application for the execution of a decree, the institution or execution of which has been stayed

by injunction or order, the time of the continuance of the injunction or order, the day on which it was issued or made and the day on which it was

withdrawn shall be excluded.

According to Section 15, therefore the period from 10th December, 1974 to 2nd March, 1981, had to be excluded. If so, the decree is well in

time. This aspect was not noticed even by the trial court.

Thus, I find the objection that the decree is barred by time, is wholly untenable.

The revision therefore fails and is dismissed with costs.