CHHOTEY LAL Vs. DIST JUDGE

JUDGEMENT

(1.) Suit filed by Sri Sita Ram for recovery of rent having been decreed, he filed an application for execution to execute the decree. It appears that execution proceedings were stayed by this Court and during the period of stay Sita Ram died. After stay order was vacated respondents Nos. 3 to 5, the widow and two sons of Sita Ram moved an application before the execution court for bringing their names on record in place of Sita Ram so as to enable them to continue the execution proceedings. Petitioner, who was defendant in the suit and is judgment-debtor, filed objection against the aforesaid application of the heirs and legal representatives of Sita Ram. Objection having been rejected, petitioner filed a revision before the learned District Judge, which has also been dismissed by order dated 28-8-1990. It is against these orders of the execution court and the learned District Judge that this writ petition has been filed.

(2.) Learned counsel for the petitioner has challenged the impugned orders on the grounds that (i) execution proceedings cannot be continued by heirs and legal representatives of deceased decree-holder unless succession certificate u/S. 214 of the Succession Act has been obtained, and (ii) even if Rules 3, 4 and 8 of O. 22 of the C.P.C. are not applicable to the execution proceedings, application for substitution has to be made so as to bring on record the heirs and legal representatives of the deceased decree-holder and there being no other provision for making such an application except S. 151 of the C.P.C. this application has to be filed within three years as provided for by Art. 137 of the Limitation Act.

(3.) Order 22, R. 12 lays down that nothing in Rules 3, 4 and 8 shall apply to proceedings in execution of a decree or order. Rules 3 and 4 of Order 22 provide for making of an application for substituting the heirs of plaintiff and defendant within the time provided by law, with the result that if such an application is not made, suit stands abated. When R. 12 lays down that nothing in Rules 3 and 4 will apply to execution proceedings, it means that even if heirs are not brought on record, execution proceedings will not abate. The legal representatives of the deceased decree-holder are not required to move substitution application and as held by a Division Bench of this Court in Manmohan Dayal v. Kailash Nath, AIR 1957 All 647: 1957 All LJ 578 they are entitled to ask for continuation of execution proceedings without moving any fresh application for execution.