TRIMBAK NARHAR Vs. GOPAL NARAYAN

JUDGEMENT

(1.) THIS application has been made by the appellants in second appeal No.439 of 1943 praying that the heirs of the deceased respondent No.1 should be brought on the record and that the delay, if any, in making the present application should be excused. The appeal under which the application has been made has been preferred by three appellants who were original defendants and it arises in the execution of a decree passed against them. There were four respondents to the appeal. Out of them respondent No.1 died on April 11, 1945. The present application to bring the heirs of the deceased respondent on the record has been made on December 22, 1945. Prima facie this application would be beyond time since under Article 177 of the Indian Limitation Act applications to bring the legal representatives of the deceased respondent have to be made within 90 days from the date of the death of the respondent concerned. Mr. Desai has, however, contended that the provisions of O. XXII, relating to the abatement of suits, do not apply to appeals in execution proceedings and there would thus be no question of applying Article 177 to the application made by him. In other words Mr. Desai's contention is that the appeals arising in execution proceedings are proceedings in execution and under O. XXII r. 12, provisions as to abatement contained in Rules 3 and 4 of the said Order cannot apply to them. There is no reported decision of this Court on the point raised by Mr. Desai; that is why the matter has been referred to a Division Bench by Mr. Justice Bavdekar.

(2.) THUS the short question which arises for decision in this application is whether the words "proceedings in execution of a decree" used in Rule 12 of O. XXII should be deemed to include appeals arising from orders passed in such proceedings. Mr. Desai argues that appeals filed against such orders are continuation of the proceedings from which they arise and should, in law, partake of the same character as the original proceedings. Rule 12 of O. XXII provides that nothing in Rules 3, 4 and 8 shall apply to proceedings in execution of a decree or order. At one stage the question as to whether the procedure laid down in reference to the suits applies to execution proceedings had given rise to difference of judicial opinion. But the doubt in the matter has now been set at rest by the scheme of the present Code of Civil Procedure and by a decision of the Privy Council in Thakur Prasad v. Fakir-Ullah. (1894) I. L. R. 17 All. 100, P. C. Dealing with this question as under the earlier Code Lord Hobhouse observed (p. 111) : But the whole of Chapter XIX of the Code, consisting of 121 sections, is devoted to the procedure in executions, and it would be surprising if the framers of the Code had intended to apply another procedure, mostly unsuitable, by saying in general terms that the procedure for suit should be followed as far as applicable. The scheme of the present Code makes it clear that the procedure laid down with regard to suits does not always or necessarily apply to proceedings in execution. In this view of the matter the provisions of Rule 12 of O. XXII merely recognise and give effect to this principle by saying that the provisions contained in Rules 3, 4 and 8 do not apply to proceedings in execution.