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Judgment
J.D. Kapoor, J.
IA 494/2002 in Ex No. 233/97
As regards application u/s 151 CPC seeking deletion of LR of defendant No. 4/JD No. 6, opposite counsel has no objection. The application is allowed. Name of LR of defendant No. 4/JD No. 6 stands deleted. Application stands disposed of.
IA 117/2002
In view of the order passed in LA No. 494/2002, the present application has become infructuous. Application is dismissed, as having become infructuous.
IA 30/2001
This is an application seeking substitution in the execution proceedings of the legal representatives of Judgment Debtor No. 6 who died on 20th June, 1986. The decree was passed by the Bombay High Court on 26.11.1985. The execution was filed in the Bombay High Court on 18.11.1997. The execution was transferred to this Court after the precept was issued on the Judgment Debtor No. 6. It is under this circumstances that the substitution of the legal representatives of judgment Debtor No. 6 is being sought.
As it is a settled law that the execution proceedings never abate, the provision of Order 22 Rule 3 CPC or for that purpose Rule 4 of CPC do not apply. There is a specific provision in the CPC in the form of Rule 12 of Order 22 CPC that nothing contained in the Rules 3 and 4 of Order 22 CPC shall apply to the execution proceedings which invariably means that the execution proceedings never abate in the absence of non-substitution of either legal representatives of decree holder or that of the judgment debtor. Provision of Rules 3 and 4 of Order 22 CPC are applicable for the purpose of making an application for substitution either heirs of the plaintiff or the defendant within the prescribed by law. In suits, if no such application is made within prescribed period, the suit stands abated. Rule 12 of Order 22 CPC places an embargo against the abatement of suit in the absence of an application under Rule 3 or Rule 4, Order 22 CPC. In other words, it means that even if the legal representatives are not brought on record, the execution proceedings will continue as the legal representatives of decree holder are not supposed to move substitution application as they are even otherwise entitled to ask for the execution of the decree.
Learned Counsel for the legal representatives of Judgment Debtor No. 6 has resisted this application mainly on the premise that Section 50 of CPC provides that where a judgment Debtor dies before the decree has been fully satisfied, the decree holder may apply to the Court which passed it for execution of the same against the legal heirs of the deceased Judgment Debtor. According to learned Counsel since this Court is the executing Court, the application for substitution or an application for execution of the decree against the legal representatives of deceased Judgment Debtor No. 6 does not lie.
Admittedly, Judgment Debtor No. 6 died after the decree was passed and before its execution. There is no doubt that Executing Court cannot go behind the decree and has to execute it as it is, but it does not mean that the Executing Court has no jurisdiction to order for the substitution of legal representatives of deceased judgment debtor. The function of the Executing Court is to execute the decree as Rule 12 Order 22 CPC provides that the provisions of Rules 3 and 4 of Order 22 CPC are not applicable so far as abatement of the execution is concerned. The natural corollary flowing from Section 50 CPC is that the Executing Court can entertain the application for substitution of the legal representatives of deceased Judgment Debtor.
To ask the decree holder to apply to the Court who passed the decree for the substitution of legal representatives of Judgment Debtor, would be against the principles of natural justice and would frustrate the execution itself and would impliedly mean as if execution proceedings are no different that suite proceedings. The decree has to be executed without even bringing the legal representatives of the deceased Judgment Debtor on record. However, where a Judgment Debtor dies before the decree has been fully satisfied, the legal representatives are required to be brought on record for the purpose of execution of the decree. The interpretation of Section 50 CPC has to be read along with Rule 12 Order 22 of CPC and has to be provided meaningful interpretation. Section 50 CPC is only in respect of those execution proceedings which are pending before the same Court which had passed the decree and not before the Court where the execution proceedings have either been transferred for execution or are pending for execution.
For the foregoing reasons, the application is allowed and the legal representatives of Judgment Debtor No. 6 are brought on record so as to continue the execution proceedings.
IA stands disposed of. S.No. 233/1997.
Let amended memo of parties be filed within two weeks. On filing of the same, notice of the execution be sent to the LRs of Judgment Debtors No. 6 as well as other Judgment Debtors for 29th May, 2003.