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Appeal from Appellate Order No. 7 of 1965, decided on 10th February 1965.

‑Execution proceedings‑Abatement- Execution proceedings are a continuation of suit and not original proceedings‑Provisions of rr. 3 & 4, O. XXII and S. 141 do not apply to such proceedings‑Execution proceedings do not abate for failure to bring legal representatives of deceased party on record.

Order XXII of the Code of Civil Procedure provides for abatement on the death of a party to a suit. The rules embodied in that Order apparently refer to suits and the provision of section 141 laying down that procedure provided in the Code in regard to suit shall be followed as far as it can be made applicable in all proceedings in any Court of Civil jurisdiction is not available to make them applicable to execution proceedings for the simple reason that such proceedings are a continuation of the suit and not original proceedings. It is, however, provided in rule 12 of Order XXII that nothing in rules 3, 4 and 8 shall apply to proceedings in execution of a decree or order, wherefrom one may take it to follow that the other provisions in the said Order, unless excluded by necessary implication, are applicable to such proceedings.

As rules 3 and 4 are the only provisions in the Code providing for abatement of a suit in the event of failure to bring the legal representatives of a deceased party on record and as these are expressly made inapplicable to execution proceedings, no question of abatement of such proceedings can arise for their non compliance

An execution proceeding does not abate on the death of a party thereto as against him or his legal representatives and it is open to the legal representatives of the deceased decree holder to get themselves substituted in place of their deceased predecessor and thus take up the carriage of the proceeding just as the decree‑holder is free, in case the deceased happens to be a judgment debtor, to bring such representative on record and continue the execution. It is as well open to the former to file a fresh application for execution but they are not bound to do so and are at liberty, as already indicated above, to carry on the proceeding already started after getting themselves substituted in place of their deceased predecessor.

It may very often happen that on the death of a party and failure of the party concerned to bring his or her legal representatives on record an execution proceeding may be struck off or dismissed for default as not being properly constituted, but even then the legal representatives of the deceased decree‑holder may, subject of course to the general law of limitation, make an application for reviving the proceeding and the Court may on a consideration of the particular circumstances entertain such a prayer.

Venkatachalam Chetti v. Ramaswamy Servai and others (I L R 55 Mad. 352 and Annada Prasad Mitra v. Sushil Kumar Mandal (46 C W N 326 ref.

D. C. Bhattacharjee for Petitioner.

Mozammel Huq for the Opposite‑Parties.

This revisional application, originally filed under the amended provisions of the Code of Civil Procedure (since repealed), is now treated as Second Miscellaneous Appeal and dealt with accordingly. It arises out of a proceeding under section 47 of the said Code. The material facts revealing the chequered history of this litigation may be briefly stated as follows:

The plaintiff decree‑holder brought Title Suit No. 109 of 1950 in the Ist Court of the Munsif at Chittagong Sadar for possession on declaration of his title to the disputed properties described in Schedules 1, 2, 3 (ka) and 3 (kha).. The suit was eventually contested by the defendants Nos. 2 and 3 only. Both of them put forward a plea of disclaimer with respect to the disputed subject‑matter except for an area of 07 acre out of R. S. plot No. 217 in Schedule 1. The suit ended in a decree. It was found that the defendants were trespassers in respect of plot No. 217 and the plaintiff‑appellant was entitled to confirmation of possession in the properties described in Schedule 2 and recovery of possession in the rest described in Schedules 1, 3 (ka) and 3 (kha). The appeal preferred against this decree was ultimately dismissed. The plaintiff decree‑holder, i.e., the present appellant, thereupon put the decree into execution. In the meantime one Ali Ahmed filed a suit for permanent injunction restraining the defendants from executing the said decree and succeeded in obtaining a temporary injunction restraining the plaintiff decree‑holder from proceeding with the execution started by him. Finally the suit terminated in favour of the plaintiff decree‑holder, i. e., the appellant, on 6‑2‑58 and thereafter the execution case was proceeded with. The judgment‑debtors, however, did not give up their obstructive tactics and successively filed three miscellaneous cases under section 47 of the Code of Civil Procedure, the last of them being Miscellaneous Case No. 22 of 1961. All these cases were dismissed but out of Miscellaneous Case No. 22 of 1961 there was an appeal, which was also dismissed on 18‑8‑61. Thereafter Miscellaneous Case No. 4 of 1962 under section 47, out of which the present appeal arises, was started by the heirs of one of the judgment‑debtors, i. e., judgment‑debtor No. 2 (chha) Sajeda Khatun, who appears to have died in the meantime. They attacked the execution proceeding as against them on the ground of their substitution long after the due date. It may be mentioned here that the said judgment‑debtor died on 21‑9‑60 and her heirs, i. e., the petitioners in Miscellaneous Case No. 4 of 1962, were brought on record on 23‑9‑61. On trial the learned Munsif took the view that under Order XXI, rule 17, Civil Procedure Code the executing Court has discretion to allow amendment and that though there was some delay in making the disputed substitution, that was excusable in the circumstances of the case. He accordingly dismissed the case under section 47. On appeal, however, the learned Subordinate Judge reversed the decision of the trial Court holding that rules 3, 4 and 9 of Order XXII of the Code of Civil Procedure were applicable to the application filed for substitution of the heirs of the deceased judgment‑debtor and in that view of the matter their substitution beyond the prescribed period of 90 days was illegal so that the execution proceeding abated in respect of the said heirs, i. e., the petitioners. It is this appellate order that is the subject‑matter of challenge in the present appeal before me.

Although several grounds have been taken in the present appeal, Mr. D. C. Bhattacharjee, appearing on behalf of the appellant, has pressed only one of them at the hearing and it is that in execution there is no question of abatement in view of the provision of Order XXII, rule 12 of the Code and that the learned Subordinate Judge acted illegally in applying the provisions of rules 3 and 4 of the said order to the matter before him,

Order XXII of the Code of Civil Procedure provides for abatement on the death of a party to a suit. The Rules embodied in that order apparently refer to suits and the provision of section 141 laying down that procedure provided in the Code m regard to suit shall be followed as far as it can be made applicable in all proceedings in any Court of Civil jurisdiction is not available to make them applicable to execution proceedings for the simple reason that such proceedings are a continuation of the suit and not original proceedings.‑ It is, however, provided in rule 12 of Order XXI1 that nothing in rules 3, 4 and 8 shall apply to proceedings in execution of a decree or order, wherefrom I take it to follow that the other provisions in the said Order, unless excluded by necessary implication, are applicable to such proceedings. I would now turn to the general rule embodied in rule 1 that death of plaintiff or defendant shall not cause a suit to abate if the right to sue survives. This must, however, be read with rules 3 and 4 prescribing the procedure in case of death of one of several plaintiffs or of sole plaintiff and of one of several defendants or of sole defendant. These read as follows: ‑

‑(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 sue survives, the Court, on an application made in that behalf, shall cause the legal representatives 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."

"4.

(1) 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."

It is important to note that these rules restrict the generality of rule 1 by imposing the penalty of abatement in the event of default in bringing the legal representative of the deceased party on record within the prescribed time‑limit. Another noteworthy feature that may also be usefully underlined is that abatement results not from death but from failure on the death of a party to bring his or her legal representatives on record within the statutory period, as provided in the above rules. Rule 12, however, excludes their applicability to execution exceedings. It says‑

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

As rules 3 and 4 are the only provisions in the Code providing for abatement of a suit in the event of failure to bring the legal representatives of a deceased party on record and as these are expressly made inapplicable to execution proceedings, no question of abatement of such proceedings can arise for their non‑compliance. In this view of the matter, therefore, the aforesaid contention urged by Mr. Bhattacharjee must, in my opinion, be upheld.

A question, that may, however, arise here, is whether an execution proceeding must terminate or is to be regarded as terminated on the death of a party, so far as that party or his or her legal representative is concerned. In order to answer this I would like to refer to section 146 before proceeding to draw upon two of the authorities cited by Mr. Bhattacharjee. That section reads :‑

"146. Proceedings by or against representatives.‑Save as otherwise provided by this Code or by any law for the time being in force, where any proceeding may betaken or application made by or against any person, then the proceeding may be taken or the application may be made by or against any person claiming under him."

I now come to the authorities relied upon by Mr. Bhattacharjee. These are Venkatachalam Chetti v. Ramaswamy Serval and others (I L R 55 Mad. 357) and Annada Prasad Mitra v. Sushil Kumar Mandal (46 W N 326). In the former a Full Bench of the Madras High Court on a review of the earlier judicial decisions on the point held that where a decree‑holder died pending execution proceedings, a fresh application was not necessary and that the old proceedings could be continued by the legal representatives of the decree‑holder after substitution. Similarly the view taken in the latter as well as in several other authorities is to the effect that the deceased decree‑holder's legal representatives can carry on the execution proceeding started by the decree‑holder and need not file a fresh application. Adverting to this Sen, J., who was a party to this decision, has in his separate judgment observed: ‑

"It seems to me that the right to continue or carry on proceedings presupposes a right to be substituted and an application "to carry on" proceedings included in itself an application for substitution."

Some other relevant observations made by the learned Judge are as follows:

"It is quite true that there are no provisions in the Code which lay down a procedure for substituting parties in execution proceedings. The Code, however, is not exhaustive and the inherent powers of the Court to make such orders as may be necessary for the ends of justice have been preserved by section 151 of the Code of Civil Procedure. Order XXII, rr. 3 and 4 do not confer a right upon parties to get themselves substituted, they merely provide the procedure to be adopted. The right is inherent in the parties and it arises from the fact that the suit or proceeding has not abated. The Court therefore, may in the exercise of its inherent powers substitute parties in execution proceedings."

It thus appears to be well‑settled and has not, in fact, been contested by Mr. Mozammel Huq, learned Advocate appearing on behalf of the respondents, that an execution proceeding does not abate on the death of a party thereto as against him or his legal representatives and that it is open to the legal representatives of the deceased decree‑holder to get themselves substituted in place of their deceased predecessor and thus take up the carriage of the proceeding just as the decree‑holder is free, in case the deceased happens to be a judgment‑debtor, to bring such representative on record and continue the execution. It is as well open to the former to file a fresh application, for execution but they are not bound to do so and are at liberty, as already indicated above, to carry on the proceeding already started after getting themselves substituted in place of their deceased predecessor.

Though not strictly necessary for my immediate purpose, I may also proceed to point out that it may very often happen that on the death of a party and failure of the party concerned to bring his or her legal representatives on record an execution proceeding may be struck off or dismissed for default as not being properly constituted, but even then the legal representatives of the deceased decree‑holder may, subject of course to the general law of limitation, make an application for reviving the proceeding and the Court may on a consideration of the particular circumstances entertain such a prayer. In this connection it may be worthwhile to quote from the judgment of Sen, J., already referred to above, the following extract :‑

"The second point that applications for reviving the proceedings dismissed for default are barred by limitation by reason of Art. 181 of the Limitation Act does not appear to me to be sound Art. 181 applies only to applications made under the Code. The applications for setting aside the orders of dismissal and for continuing the execution proceedings are not applications under the Code of Civil Procedure. The Code nowhere provides for such applications. They are proceedings by which the inherent jurisdiction of the Court is invoked. It was argued that they were applications under section 151 of the Code and therefore governed by Art. 181 of the Limitation Act. In my opinion, this view has arisen owing to the loose language which is sometimes employed in describing applications as being under one section or another. Section 151 does not deal with any application nor does it prescribe the procedure for any application ; it is a clause whereby the inherent power which is in the Court to act ex debito justitix is recognised and left unfettered by the Code. This power is independent of the Code. An application invoking this power is one which is not made under any provisions of the Code and therefore it is not governed by Art. 181 or any other article of the Indian Limitation Act. The Court will exercise its inherent powers if it considers that justice requires its exercise and if it is satisfied that there are no such latches on the part of the applicant which would disentitle him to relief. The Limitation Act will not govern such applications."

It is thus clear that the judgment of the lower appellate Court cannot be supported in law.

The appeal is therefore allowed with costs, the judgments and decree of the lower appellate Court are set aside and that of the Munsif is restored, ,though for reasons different from those assigned by him.

S. Q.

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