SABEEDA BEEVI Vs. NAZEEMA THAHA

JUDGEMENT

(1.) The fourth Judgment Debtor in E.P. No. 42 of 1995 in O.S. No. 8 of 1984, on the file of the Court of the Munsiff of Varkala, challenges the order passed by the executing court, by which, the legal representatives of the deceased third judgment debtor were allowed to be impleaded as additional respondents. The petitioner filed an application to dismiss the Execution Petition on the ground that all the legal representatives of the deceased third judgment debtor were not impleaded. The court below dismissed that application on the ground that the application for impleading was allowed. That order is also under challenge in this Original Petition. The third judgment debtor died on 30.6.2007. Application for impleading was filed in 2007 itself. But, that application was dismissed as not pressed finding that there were some defects in the application. Later, the decree holder filed an application in 2010 to implead the legal representatives. The court below found that in spite of the dismissal of the earlier application as not pressed, the application is liable to be allowed.

(2.) Learned counsel for the petitioner submitted that the application was highly belated and therefore, the court below should not have allowed the application. Rule 12 of Order XXII of the Code of Civil Procedure provides that nothing in Rr. 3, 4 and 8 shall apply to the proceedings in execution of a decree or order. R. 3 provides for impleadment of the legal representatives of a deceased plaintiff. R. 4 provides for impleading the legal representatives of a deceased defendant. If no application is filed within the time provided under Art. 120 of the Limitation Act to implead the legal representatives of a deceased plaintiff or a deceased defendant, the suit will abate. Art. 121 of the Limitation Act provides for a further period of sixty days to file an application to set aside the abatement. If no application is filed within the time provided under Art. 121 of the Limitation Act, there would occur delay and, in any application for impleadment filed thereafter, the delay has to be explained. By providing that Rr. 3 and 4 of O. XXII of the Code of Civil Procedure would not apply to the Execution Proceedings, it only means that due to non-impleadment of the legal representatives, there would be no abatement to the execution proceedings. The legal representatives could be impleaded at any time and Execution Petition can be proceeded with. There is no bar to file a fresh Execution Petition also with the legal representatives on the party array, provided the Execution Petition is not barred by limitation. The Supreme Court in V. Uthirapathi v. Ashrab Ali & Ors., 1998 AIR(SC) 1168 held thus: