SEETHA BANGARAMMA Vs. P ASWATHANARAYANA CHETTI

JUDGEMENT

(1.) THIS revision petition is directed against an order refusing to allow the petitioner herein to be impleaded as the legal representative of the petitioner who had filed a claim petition under Order 21, Rule 58 CPC and continue the said proceeding. The learned Subordinate Judge has dismissed the petition mainly on the ground that the petitioner had quoted a wrong provision of law namely Order 21, Rule 16 CPC which relates to an application for execution by a transferee of the decree. The learned Subordinate Judge, ought to have addressed himself to the point involved rather than dismiss the petition on the technical ground that a wrong provision of law is quoted. He should have considered whether the claim petition on the death of a claimant could not have been continued by his legal representative. The determination of the question depends upon whether Order 22 CPC applies to the proceedings before him. THIS matter is no longer res integra. Order 22 Rule 12 CPC expressly states that the provisions of Order 22 CPC do not apply to execution proceedings. But it was as held by the Full Bench of the Madras High Court in VENKATACHALAM CHETTI Vs. RAMASWAMY SERVAI AND OTHERS "Order 22 Rule 2 simply means that the penalty imposed on the legal representatives of the deceased plaintiff, namely that they should come on record to continue the suit within the time allowed by law, does not attach to execution proceedings in the case of the death of the decree-holder, or in otberwords in the case of the death of the decree-holder the execution proceedings do not abate. It does not say that the legal representatives should not be brought on record in the course of the execution proceedings. Though Order 22 has no application to execution proceedings still by reason of S. 146 and Or. 21. Rule 16 the legal representative of a decree-holder who dies during the pendency of an execution petition can be substituted in the execution petition and be allowed to continue it. It is not obligatory on him to file a fresh application for execution.".

(2.) THE petition under Order 21, Rule 58 CPC also arises in execution of a decree. By virtue of S. 146 CPC as held by the Full Bench the legal representatives can be allowed to come on record and continue the proceedings on the death of the original claimant petitioner. Such a couse will advance the interests of justice and avoid multiplicity of proceedings. THE Lower Court is therefore directed to allow the petitioner to continue the proceedings, THE Lower Court will inquire into the truth or otherwise of the claim of the legal representative that she is entitled to the property in question on the basis of the will. THE mere fact that the will was not mentioned in the petition filed earlier was not a ground to reject the claim in toto without inquiry. THE order of the Court below is set aside and the lower court is directed to allow the petitioner to come on record and continue the proceedings. THE revision is accordingly allowed, THE costs of this petition will abide the result of the claim petition.