Ram Lohia vs Mt. Manno and Others

Falshaw, J.—The facts in this execution appeal are that one Ram Gopal obtained a compromise decree for Rs. 12,787/12/- on the basis of a mortgage against Sri Hum Lohia appellant. Ram Gopal died while the execution proceedings were pending and his widow, two sons and minor grandsons through their fathers applied under Order 22, Rule 3, Civil P. C., to continue the execution proceedings as his legal representatives. This was opposed by the judgment-debtor on the strength of the provisions of Order 22, Rule 12, which are to the effect that nothing in Rules 3, 4 and 8 shall apply to execution proceedings.

The executing Court held that the relations of the deceased decree-holder could not be substituted for him in the execution application but that under the provisions of Order 21, Rule 16, and u/s 146 they could continue the pending execution proceedings. It is against this order that the judgment-debtor has appealed.

His contention, which appears to mo to be somewhat captious, is that although the legal representatives of the deceased decree-holder can execute the decree, they must do so by means of a fresh execution application and they cannot carry on the one which was pending. This contention is based on the decision in -- Baij Nath and Another Vs. Ram Bharos in which a Full Bench of five Judges held that there is no rule of law which enables the legal representative of a deceased decree-holder to apply for mere substitution of names and he must apply, whenever he docs apply, for fresh execution even when his predecessor''s application is pending. This view was also followed by a Division Bench of the Luck-now Chief Court in -- AIR 1928 30 (Oudh)

As against this, however, there in an overwhelming preponderance of authority from other Courts including the Bombay, Calcutta, Nagpur, Madras and Patna High Courts in -- ''Shankar Balchand v. Hiralal Balchand; AIR 1931 Bom 425 (2) (C); -- Annacharya Sitaramacharya Jahagirdar Vs. Narayan Pandurang, --" Annada Prasad Mitra Vs. Sushil Kumar Mandal, -- ''Tejraj Rajmal v. RAM Pyari'' AIR 1938 Nag 528 (F); -- Venkatachalam Chetti Vs. Ramaswami Servai (dead) and Others, and -- Mt. Bhagwanta Kuer and Another Vs. Dewan Zamir Ahmad Khan and Others,

There are thus on the one hand decisions of two Courts, which are now uuited, as against ; the views of almost all the other old High Courts in India and the only reason I think of for there being no reported decision on the point by the Lahore Court or this Court is that so far nobody has seriously thought it worthwhile to fight the point" whether the legal representatives of the deceased decree-holder can continue a pending execution application or have, as a matter of form, to file a fresh application. I entirely agree with the view of the majority of the High Courts and accordingly hold that a'' correct view was taken by the lower court and dismiss the appeal with costs.