C S LOGANATHAN Vs. P L KAPUR

JUDGEMENT

(1.) This order will dispose of I.A. 996 of 1971 and LA. 1205 of 1971.

(2.) C.S. Loganathan executed a decree for possession of a premises known as 3, Friends Colony, New Delhi against P.L. Kapur and others. He died on 11th May, 1971. On an application moved on behalf of his widow, his two sons and two daughters these five persons were brought on record in place of C.S. Loganathan as his legal representatives but the application was granted subject to all just exceptions. It was further ordered that the name of C.S. Loganathan be deleted from the record and in his place the names of the aforesaid five persons as his legal representatives be brought on the record. No notice of this application was ordered to the judgment-debtors. I.A. 996 of 1971 was then moved on behalf of the legal heirs of C.S. Loganathan under sections 146 and 151 Civil Procedure Code praying that this court be pleased in continuation of the order dated 21st May, 1971 permit the legal heirs to continue the execution proceedings for realisation of the balance of the decretal amount due. I.A. 1205 of 1971 was then moved by the legal heirs of C.S. Loganathan to the effect that C.S. Loganathan had appointed four executors under his will dated 3rd January, 1966 and those four executors may also be brought on record as the legal representatives of C.S. Loganathan. Two executors are sons of C.S. Loganathan who have already been brought on record subject to all just exceptions by the order dated 19th May, 1971. Notice of these two applications was given to the judgment-debtors who have opposed grant of the two applications. I have heard Shri S. Ramamurti on behalf of the applicants and Shri H.L. Anand on behalf of the judgmentdebtors.

(3.) The contention on behalf of the applicants is that the legal representatives of the deceased C.S. Loganathan are entitled to continue execution proceedings without obtaining probate of the will left by C.S. Loganathan and that the legal heirs or legal representatives need not file fresh execution application. It is also contended that there is no limitation or time limit for filing such an application to continue the execution proceedings for the provisions of Order 22 of the Code of Civil Procedure are not attracted in execution proceedings. It is also contended by the applicants that the provisions of the Indian Succession Act, 1925, in particular Section 214 creates no bar to the legal heirs or legal representatives continuing with the execution of a decree. On behalf of the judgment-debtors it has been contended that as admittedly C.S. Loganathan has left a will the heirs cannot continue with any legal proceedings and it is only the legal representatives who are entitled to do so. These legal respresentatives would be the executors of the will of C.S. Loganathan and unless the will was probated they cannot proceed in view of the provisions of Indian Succession Act, in particular Section 213. Mr. Anand appearing for the judgment- debtors has contended that it is necessary that the executors should first get a probate of the will, for if the will is not prove their being allowed to continue the execution proceedings would be an illegality, for if the will is not proved the executors would have no locus standi to intervene in any legal proceedings and their intervention would not bind the legal heirs of C.S. Loganathan.