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Judgment
The petitioners claim to be the legal representatives of the deceased judgment-creditor who died during the pendency of execution application. The petitioners applied for being joined as parties contending that the deceased judgment-creditor had executed will in their favour and they were entitled to proceed further with the execution application. The respondent-original judgment debtors contended that the petitioners should be asked to obtain probate and/or letters of administration with will annexed or without will annexed. Unless they obtain probate or the letters of administration, they cannot be permitted to proceed with the execution application. The trial court upheld the contention raised by the defendants and rejected the application filed by the petitioners herein. Against this order the petitioners have preferred this revision application.
The respondents contend that in view of the provisions of Section 214(1)(b) of the Indian Succession Act, 1925, the petitioners have no right to proceed further with the execution application filed by the deceased judgment creditor. The relevant part of Section 214 of the Indian Succession Act, 1925 reads as follows: -
"214 (1) No Court shall -
(a) ......................
(b) proceed, upon an application of a person claiming to be so entitled, to execute against such a debtor a decree or order for the payment of his debt,
except on the production by the person claiming of -
(i) a probate or letters of administration evidencing the grant to him of administration to the estate of the deceased,
(ii) .................
(iii) ......................
(iv).................
If the provisions of S. 214 of the Indian Succession Act, 1925 are read carefully, it becomes evident that the restriction contained therein apply to the institution of execution application and not for proceeding with the execution application which may have been initiated by the judgment creditor himself during his life time. Once the judgment creditor himself has instituted the execution application, all that would be necessary for persons claiming to be heirs and legal representatives of the judgment-creditor would be to comply with the requirements of the relevant provisions of C.P. Code. The point is covered by a decision of this High Court in the case of Rukaiyabibi v. Abdulbhai Isufally, reported in 18 Guj LR 164. In that case this High Court has inter alia held as follows: -
"in a case where the execution proceeding has already been started by the deceased decree-holder and during the pendency of that application he dies and his legal representatives who are brought on the record want to continue that execution proceeding, it is not necessary for them to produce a succession certificate for continuance of that execution proceeding already initiated by the deceased decree holder. Section 214(1)(b) of the Act does not come in their way."
The learned counsel for the respondent tried to distinguish the aforesaid decision of this High Court. In his submission where the heirs and legal representatives are already brought on record the contention based on the provisions of Section 214(1)(b) would not be available to the other side but such contention would be available at the initial stage when they are submitting the application for being joined as heir and 1egal representative of the deceased and when the application is being decided.
It is difficult to agree with the contention raised by the learned counsel for the respondent. It is not because that the legal representatives of the deceased decree-holder are brought on record without there being any objection from the other side that they get right to continue the execution proceedings. Objection or concession on the part of the other side does not determine the right of the legal representatives of the deceased decree holder to pursue further execution proceedings. Nor such objection or concession remove the bar of provisions of Section 214(1)(b) of Indian Succession Act, 1925 if there be any. The right of the legal representatives of the deceased decree holder to continue the execution proceedings has its roots in the provisions of C.P. Code.
Order 22 Rule 12 inter alia provides that nothing in Rules 3 and 4 of order 22, shall apply to proceedings in execution of a decree or order. Rule 3 of Order 22 provides for procedure in case of death of one of several plaintiffs or of sole plaintiff while Rule 4 of Order 22 provides for procedure in case of death of one of several defendants or of sole defendant. But these provisions are made inapplicable to execution proceedings. The penalty of abatement does not attach to execution proceedings. This is because execution application can be filed any number of times so long as the decree is alive. The provisions of Section 146 of C.P. Code enable the legal representatives of deceased decree holder to be brought on record to carry on a pending execution proceedings. Thus under the CPC there is nothing to indicate that the legal representative of the deceased decree holder should obtain probate or letter of administration or succession certificate as provided u/s 214(1)(b) of the Indian Succession Act, 1925 for continuing the execution proceedings. As indicated hereinabove in the legal representatives of the deceased decree holder wish to continue the execution proceedings initiated by the decree holder during his lifetime they are not covered by the provisions of Section 214(1)(b) of the Indian Succession Act, 1925. This is the reason why in the case of Rukaiyabibi Vs. Vohra Abdulbhai Isufally and Others, this court has held that the legal representatives of the deceased decree holder who are brought on record were entitled to continue the execution proceedings. In view of this legal position, the contention raised by the learned counsel for the respondent cannot be accepted.
In above view of the matter, the trial court has failed to exercise its jurisdiction vested in it. Hence the impugned order is required to be quashed and set aside and the application Exh. 70 submitted by the petitioners herein is required to be allowed.
In the result, the revision application is allowed, The impugned order passed below Exh. 70 and Exh. 74 is quashed and set aside, and the application Exh. 70 is allowed, The petitioners are permitted to be joined as heirs and legal representatives of the deceased judgment-creditor. Rule made absolute accordingly with no order as to costs.
Revision allowed.