Sankarambal vs Lalitha Ganesan

Balakrishna Eradi, J.—This revision petition has been filed against an Order passed by the District Judge of Palghat allowing E.A. No. 13 of 1975 filed by the legal representatives of the decree-holder in O.S. No. 7960 of 1971 of the Madras City Civil Court to amend the petition E.A. No. 4 of 1975 filed by them for effecting delivery of possession of the properties covered by a sale certificate by substituting the names of the legal representatives of the deceased judgment-debtor. The revision Petitioners before us are the legal representatives of the deceased judgment-debtor in O.S. No. 7960 of 1971 who were Respondents in E.A. No. 13 of 1975.

The suit O.S. No. 7960 of 1971 was filed by Sri P.N. Ganesan against one Sri C.S. Venkateswara Iyer for the recovery of the principal and interest due under two promissory notes. The suit was decreed in the Plaintiff''s favour on 1st March 1972. The decree-holder moved the City Civil Court, Madras by filing E.P. No. 640 of 1973 praying that the decree may be transferred to the District Court, Palghat for execution. That petition was allowed. Thereafter the decree-holder filed E.P. No. 7 of 1973 in the District Court, Palghat on 15th March 1973 for execution of the decree by attachment and sale of certain immovable properties belonging to the judgment-debtor. Pursuant to the orders passed on the application the judgment-debtor''s properties were sold in execution on 25th March 1974 and purchased by the decree-holder for Rs. 26,005. That sale was confirmed by the executing court (District Court, Palghat) on 29th May 1974. Subsequent thereto, the decree-holder died on 29th November 1974. The Respondents herein who are the legal representatives of the decree-holder applied to the District Court, Palghat on 26th May 1975 as per E.A. No. 4 of 1975 in E.P. No. 7 of 1973 for delivery of possession of the properties covered by the sale certificate. They also filed E.A. No. 3 of 1975 in the same court praying that they should be brought on record as the legal representatives of the decree-holder -- auction purchaser. On 27th September 1975 the executing court (District Court, Palghat) dismissed E.A. No. 3 of 1975 holding that the application for impleading legal representatives of the deceased decree-holder could be entertained only by the court which passed the decree and that the transferee court had no jurisdiction to entertain such an application. The petition E.A. No. 4 was however kept pending in the same court.

Very shortly thereafter, the judgment-debtor also died on 30th September 1975. On 4th October 1975 the legal representatives of the decree-holder applied to the City Civil Court, Madras as per C.M.P. No. 4849 of 1975 under Order XXI, Rule 16, CPC to get themselves impleaded as legal representatives of the decree-holder -- auction purchaser. They also filed C.M.P. No. 4850 of 1975 before the same court to implead the Respondents herein as the legal representatives of the deceased judgment-debtor. Both those petitions were allowed by the City Civil Court, Madras. It was subsequent thereto that the Respondents herein filed E.A. No. 13 of 1975 before the District Court, Palghat on 7th November 1975 to amend the pending application E.A. No. 4 of 1975 by adding therein the names of the revision Petitioners as legal representatives of the deceased judgment-debtor. By the order, dated 24th November 1975 now sought to be revised the lower court allowed that application.

It is necessary to mention at this stage that the deceased judgment-debtor had, prior to his death, filed E.A. No. 7 of 1975 before the lower court (District Court, Palghat) praying that the execution sale should be set aside under Sections 47 and 151 of the Code of Civil Procedure. In that application the legal representatives of the deceased decree-holder had been shown as the Respondents. After the death of the judgment-debtor the revision Petitioners filed E.A. No. 11 of 1975 before the executing court (transferee court) to get themselves impleaded as supplemental Petitioners in E.A. No. 7 of 1975 in their capacity as the legal representatives of the original applicant. That application was allowed by the lower court on 7th November 1975.

On behalf of the revision Petitioners it is contended that the legal representatives of the decree-holder ought to have filed a flesh application for execution after they had obtained the order from the court which passed the decree permitting them to be brought on record as legal representatives of the deceased decree-holder. According to the revision Petitioners E.A. No. 4 of 1975 was an ab initio invalid application since it had been filed by the legal representatives of the decree-holder before they had obtained necessary orders from the City Civil Court, Madras under Order XXI, Rule 16, Code of Civil Procedure. On this basis it is urged that the court below acted illegally and without jurisdiction in permitting the amendment of an invalid application which could not even be regarded as a proceeding validly pending before the lower court.

In support of the above contention the learned advocate appearing for the Petitioners relied strongly on the decisions in Amar Chandra Banerjee v. Guru Prosunno Mukerjee ILR Cal 488 and Pulin Behari Pal and Another Vs. Iswar Chandra Pal Firm and Others, . In ILR 27 Calcutta 488 a Division Bench of the Calcutta High Court held that u/s 232 of the CPC (Act 14 of 1882) which corresponded to Order XXI, Rule 16 of the present Code, an application by a transferee of a decree for its execution was entertainable only by the court which passed the decree. The reason stated by the learned Judges in support of their conclusion was that Section 232 clearly showed that an application by the transferee of a decree for leave to execute it was to be granted, not as a matter of course, but only when the court which passed the decree thought fit and a discretion being thus left in that court to allow or not to allow the execution to proceed at the instance of the transferee of the decree it would follow that no other court could entertain an application of the transferee.

The aforesaid reasoning can obviously have no application to a case where the application is made not by a transferee by assignment but by the legal representatives of the deceased decree-holder who are entitled as of right to be brought on record for continuing the execution proceedings instituted by their deceased predecessor. That there is a vital distinction between an application filed by a transferee who has taken an assignment of the decree from the decree-holder and one filed by the legal representatives of the deceased decree-holder has been pointed out in the second decision of the same High Court which was relied on by the revision Pulin Behari Pal and Another Vs. Iswar Chandra Pal Firm and Others, . In that ruling the Division Bench of the Calcutta High Court observed at page 305:

When the judgment-debtor dies pending the execution proceedings, the application for substitution of his heirs should indeed be made to the court which passed the decree, but that court has no discretion in the matter and an order for execution must be made. This therefore can be regarded as a matter of form and any irregularity in the proceedings can be cured by Section 99, Code of Civil Procedure. The case is different when an application is made by a transferee of a decree under Order 21, Rule 16, Code of Civil Procedure, and there the court has got to determine judicially whether the transferee should be allowed to execute the decree or not. This is not a matter of procedure, and if the Legislature lays down that the application has to be made to the court which passed the decree, no other court could possibly exercise jurisdiction.

In (Kanwar) Jang Bahadur v. Bank of Upper India Ltd., Lucknow, in liquidation AIR 1928 P.C. 162. the question directly arose before the Judicial Committee of the Privy Council whether an order allowing an application for substitution of the legal representatives of the deceased judgment-debtor passed by the court to which the decree had been transferred for execution was wholly without jurisdiction and whether the proceeding was a nullity in view of the provision contained in Section 50, CPC that an application for leave to execute the decree against the legal representatives of the deceased judgment-debtor is to be made to the court which passed the decree. Answering the question in the negative the Judicial Committee observed:

In order to decide that question, it is necessary to examine the provisions of the Code as to execution when a decree is transferred. Under Clause (c) of Section 39 the Code of 1908, a decree, directing the sale of immovable property situate outside the local limits of the jurisdiction of the court which passed it, may be transferred for purposes of execution to the court within whose jurisdiction the property is situated. On such transfer the former court does not altogether lose seisin of the decree. But the court of transfer obtains jurisdiction to deal with that particular execution proceeding and retains such jurisdiction until such execution is withdrawn or stayed or until it certifies to the court which passed the decree either that the decree has been executed or if it fails to execute the decree, the circumstances attending such failure (section 41).

If the judgment-debtor dies, before any such certificate is issued, the court of transfer does not lose its jurisdiction over the execution proceeding, which does not abate by reason of the death. But before execution can proceed against the legal representative of the deceased judgment-debtor, the decree-holder must get an order for substitution from the court which passed the decree. This is a matter of procedure and not of jurisdiction. The jurisdiction over the subject-matter continues as before, but a certain procedure is prescribed for the exercise of such jurisdiction. If there is non-compliance with such procedure the defect might be waived; and the party who has acquiesced in the court exercising it in a wrong way cannot afterwards turn round and challenge the legality of the proceedings.

Looked at from this point of view there does not appear to be any real conflict between the different decisions in India. In the case of Sham Lal Pal v. Madhu Sudan Sircar (1895) 22 Cal. 558, the application u/s 234 of the Code of 1882 (Now Section 50) was regarded as mere matter of form, i.e., of procedure, as explained by Banerjee, J. in Amar Chandra v. Guruprosonno (1900) 27 Cal. 488 . Similarly in the case of Swami Nath Ayyar v. Vaidya Nath Sastri (1905) 28 Mad. 466, when the case came on for final hearing, after the decision of the point referred to the Full Bench, Sir Arnold White, C.J. and Subramania Ayyar, J. held that the irregularity involved in the order for substitution having been made by the court to which the decree had been sent for execution could not be cured by virtue of Section 578 of the then Code ''as objection was taken by the Appellants to the application being entertained by the court. In other words, there had been no such waiver as would cure a defect in procedure, though no waiver could confer jurisdiction where none existed.

After consideration of all the circumstances of the case under appeal, their Lordships came to the conclusion that the Hardoi Court had jurisdiction to deal with the matter of the execution transferred to it; that the exercise of such jurisdiction as against the Appellant, though irregular in the first instance, was submitted to for a considerable time by him. He cannot now be heard to object to the exercise of such jurisdiction and it would be to permit a gross abuse of procedure if he was allowed to do so.

The above pronouncement by their Lordships is clear authority for the position that an application for execution filed by the legal representatives of a deceased decree-holder in the court to which the decree has been transferred for execution without their having already obtained orders from the court which passed the decree allowing them to execute the decree under Order XXI, Rule 16, CPC is not a nullity. At the worst, the failure to move the court which passed the decree under Order XXI, Rule 16, CPC is only a procedural irregularity which can be waived or subsequently cured. In the present case while E.A. No. 4 of 1975 was pending before the District Court, Palghat the legal representatives of the decree-holder moved the City Civil Court, Madras under Order XXI, Rule 16, CPC by filing C.M.P. No. 4849 of 1975 and that application was duly allowed. The contention put forward by the revision Petitioners that E.A. No. 4 of 1975 was ab initio wholly invalid and could not be regarded as legally pending before the lower court cannot stand in the light of the principles laid down by the Privy Council. That application was imperfect in the sense that there was a procedural irregularity in not having obtained orders from the court which passed the decree under Order XXI, Rule 16 permitting the legal representatives to continue the execution proceedings. But that was a curable defect and it was fully cured by the order subsequently passed by the City Civil Court, Madras allowing. C.M.P. No. 4849 of 1975. In Sailendra Nath Ghose and Others Vs. Surendra Nath De and Another, a Division Bench of the Calcutta High Court had occasion to deal with the identical question and the learned Judges after adverting in detail to the earlier rulings on the subject including that of the Privy Council in (Kanwar) Jang Bahadur v. Bank of Upper India Ltd. Lucknow, in liquidation AIR 1928 P.C. 162 observed as follows:

In a case where a 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 degree transferred for execution a procedure that appears to have been followed in the case of Jogendra Chandra Roy v. Sham Das (1909) 36 Cal. 543. In case where after the decree has already been transferred the death takes place the same procedure may be followed or the legal representatives may apply to the executing court for carrying on the proceedings, and may subsequently produce from the court which passed the decree the necessary order under Order 21, Rule 16, CPC and as has been held in the case of Monorath Das v. Ambika Kanta Bose (1909) 1 I.C. 57, the failure or omission of the legal representatives to produce such an order from the Court which passed the decree at the moment of his application to the executing court does not entirely vitiate his application to the executing Court.

We are in respectful agreement with the above statement of the law. Hence, after the legal representatives of the deceased degree-holder obtained orders from the City Civil Court, Madras in C.M.P. No. 4849 of 1975 allowing their prayer under Order XXI, Rule 16, CPC it was fully open to them to pursue before the transferee court the prayer that they had already made in E.A. No. 4 of 1975 for delivery of possession of the properties covered by the sale certificate, and also to move that court for amending the said application by substituting therein the names of the legal representatives of the deceased judgment-debtor the strength of the orders already passed in that regard by the City Civil Court, Madras in C.M.P. No. 4850 of 1975. There is, therefore, no substance in the contention put forward by the revision Petitioners that the lower court had acted illegally and without jurisdiction in allowing the amendment application -- E.A. No. 13 of 1975 -- filed by the legal representatives of the decree-holder.

Apart from what is stated above, there is also another short ground on which the order passed by the court below can be substained. Order XXI, Rule 16 of the CPC is not really attracted to a case like the present one where the legal representatives of the deceased decree-holder -- auction purchaser are merely seeking to obtain delivery of possession of the properties purchased at the court auction sale in enforcement of the sale certificate. Though such a proceeding is undoubtedly one which relates to the satisfaction of the decree and will therefore fall within the scope of Section 47 CPC as liberally interpreted in Harnandrai Badridas Vs. Debidutt Bhagwati Prasad and Others, it cannot be considered to be an application for execution of the decree so as to fall within the scope of Order XXI, Rule 16, CPC on this ground also the contention put forward by the revision Petitioners based on Order XXI, Rule 16, CPC cannot be sustained.

It follows from the foregoing discussion that there are no grounds warranting any interference by this Court u/s 115 of the CPC with the order passed by the lower court. The Civil Revision Petition is accordingly dismissed with costs.