Vimla Golecha vs The State Bank of India and Others

Alok Sharma, J—A challenge has been made to the order dated 29.3.2014 passed by the Addl. District & Sessions Judge No. 2, Beawar (Rajasthan) (hereinafter ''the executing court'') whereby a house Narsinghpura situate in Khasra No. 420 Tehsil Beawar (popularly known as ''Golecha Farm'') has been attached in execution of decree dated 26.11.1986 passed in favour of the respondent State Bank of India (hereinafter ''the Bank'').

Counsel for the petitioner submits and it is admitted fact that the deceased-judgment debtor-guarantor Moti Chand Golecha expired prior to the full satisfaction of the decree and information with regard thereto was furnished to the counsel for the judgment debtor before the executing court on 3.1.2012. Thereupon on 15.9.2012 the executing court observed that due to the reason of the death of the judgment-debtor-guarantor-Moti Chand Golecha, recovery proceedings against him could not be continued as an application for taking his legal representatives on record had not been filed. And even though on 9.4.2013 the decree-holder-Bank filed an application for taking the legal representatives of deceased Moti Chand Golecha on record, no order thereon was passed. Yet warrant for recovery of the decreetal amount and attachment of ''Golecha Farm'' has been issued by the trial court on 10.12.2013.

Counsel for the petitioner has submitted that section 50 of the Code of Civil Procedure, 1908 provides that where a judgment-debtor dies before the decree has been fully satisfied, the holder of the decree should apply to the executing court to take the legal representatives of the deceased judgment-debtor on record. Only thereupon such legal representatives would be liable albeit only to the extent of the property of the deceased judgment-debtor which has come into their hands. It has been submitted that albeit under Order 22 Rule 12 CPC, an execution application cannot abate for reasons of non-bringing the legal representatives of the deceased judgment-debtor on record within the time otherwise prescribed, yet the legal representatives of the deceased judgment-debtor cannot be subjected to the execution processes without being impleaded. Reliance has been placed on a Division Bench Judgment of this Court in the case of Mubarak Begam and Another Vs. Sushil Kumar and Others, AIR 1957 Raj 154 as also the Full Bench decision of the Madras High Court in the case of Kanchamalai Pathar Vs. Ry. Shahaji Rajah Sahib (deceased) and Others, AIR 1936 Mad 205 : (1936) ILR (Mad) 461 : (1936) 43 LW 238 : (1936) 70 MLJ 162 . It has been submitted that in these circumstances the order of attachment of ''Golecha Farm'' passed by the executing court without impleading the legal representatives of the deceased Judgment-debtor guarantor is wholly illegal and ultra-vires the provisions of the Civil Procedure Code, 1908. Therefore same is liable to be quashed and set-aside.

Mr. Vijay Saini appearing for the respondent Bank submits that the application for impleadment of the legal representatives of the deceased-Moti Chand Golecha was moved before the executing court on 9.4.2013. It is however admitted that the executing court on 10.12.2013 without formally impleading the legal representatives of deceased judgment-debtor/guarantor issued recovery warrant and attached ''Golecha Farm''. It has been submitted that in view of the procedural flaw as evident from the interpretation of section 50 CPC by the Division Bench of this Court in Mubarak Begam and Anr. (supra), the matter be remanded to the executing court for complying with the formality of impleading the legal representatives of the deceased judgment-debtor-guarantor-Moti Chand Golecha and proceeding with the bank''s execution application thereupon.

Heard. Considered.

From the facts on record and the order-sheets enclosed with the petition it is evident that the legal representatives of the deceased judgment-debtor-guarantor-Moti Chand Golecha were not impleaded on an application for the purpose moved by the respondent-Bank before the executing court. The Hon''ble Division Bench in Mubarak Begam and Anr. (supra) has held that the execution proceedings against the deceased judgment-debtor can only continue, if so desired by the decree-holder, on the formal impleadment of his legal representatives.

In the circumstances, the warrant of recovery and attachment of ''Golecha Farm'' issued on 10.12.2013 by the executing court is set aside. The petitioner is directed to appear before the executing court on 28.9.2015 and if advised, file objections to the application for impleadment of the legal representatives of the deceased judgment-debtor-guarantor-Moti Chand Gupta. The other two legal representatives of the deceased judgment-debtor-guarantor-Moti Chand Golecha being the sons of the petitioner, counsel for the petitioner undertakes that they also shall be duly represented before the executing Court on 28.9.2015. The executing court is directed to dispose of the application for impleadment of legal representatives within a period of ten days thereafter. Thereupon, following their impleadment, the legal representatives of the deceased judgment-debtor shall be within their rights in terms of section 50 of the CPC to file objections as warranted. The objections so filed be disposed of within four weeks of their filing. Till the disposal of the objections, ''Golecha Farm'' shall not be alienated or otherwise encumbered in any manner whatsoever.

The petition stands allowed accordingly.