G KRISHNA SOMAYAJULU Vs. D ANNAPPA

JUDGEMENT

(1.) It is conceded by advocates appearing for the panics that there is a conflict between two Division Bench decisions of the Madras High Court in Alagiriswami Naidu v. Venkatachelapathy Ayyar and Narayanan Chetti v. Panehanathan Chettiar'. It was held in Alagiriswami Naidu v. Venkataehalapathi lyar that an execution application filed by the legal representative of a deceased decree-holder without being brought on record as his legal representative was one made in accordance with law whereas in Narayanan Chetti v. Panchanathan Chettiar it was ruled that a decree passed solely in favour of a Hindu father cannot, after his death, be executed by his sons without recognition by the court which passed the decree of the devoluu'cn upon them of the decree, even though the sons may be entitled along with their father to the benefits of the decree. As this matter relates to procedure and the question arises often, it is necessary to have the authoritative decision of a Full Bench on the following question :

(2.) The facts which have given rise to this reference may be briefly stated: On the 29th of December 1941, the deceased father of the respondents obtained a decree against the petitioners in O. S. No. 378 of 1940 on the file of the District Munsif's Court, Kovvur. The decree was confirmed in appeal by the Subordinate Judge's Court, Eluru, on the 9th of March, 1943. Befote the decree could be executed, however, the decree-holder died On the 9th of March, 1946, the sons of the deceased decree-holder, as his legal representatives, filed E. P. No 111 of 1946 against the judgment-debtors. The execution petition merely described the applicants as the legal representatives of the deceased decree-holder and prayed for execution but did not contain a specific prayer that they should be brought on record. E. P. No. 111 of 1946 was dismissed for default on the 13th of September, 1946. Thereafter, on the 9th of March, 1948, the legal representatives of the deceased decree-holder again applied for execution in E. P. No. 98 of 1948 The judgment-debtors contended that E. P. No. 111 of 1946 was not in accordance with law as the legal representatives of the deceased decree- holder had nor been brought on record and that the subsequent E. P. No. 98 of 1948, not having been filed within three years from the date on which the decree had become final, it was barred by limitation. The District Munsif accepted the judgment-debtor's objection bur on appeal, the District Judge held that E. P. No. 111 of 1946 was in accordance with law and that the subsequent E. P. No. 98 of 1948 was not therefore barred by limitation. The judgment-debtors have come up in revision against the said order. Now, it is contended for the petitioner that whenever an application for execution is made by the legal representatives of a deceased decree-holder, the application must contain two prayers; One, for recognition, and the other, for execution; and any application which does not contain a specific prayer for recognition cannot be treated as one made in accordance with law.

(3.) An application for execution of a decree by a transferee, under an assignment in writing or by operation of Jaw, is governed by Order XXI Rule 16 of the Code of Civil Procedure. The provisions of the Code and the Limitation Act relating to execution should be substantially complied with before the applition can be treated as made in accordance with law. The words "in accordance with law" mean in accordance with the law relating to execution. Order XXI Rule 16 of the Code of Civil Procedure, so fat as it is material for the present purposes, is as follows: