K DAMODAR GUPTA Vs. K VENKATESWARA RAO

JUDGEMENT

(1.) THIS revision is directed against the order passed bv the learned Subordinate Judge, Gudivada, in E.A.No. 206 of 1974 in O.S.No. 130 of 1951. The petitioner is one of the legal representatives of the third decreeholder who died pending an execution petition filed he was alive. The petitioner and others filed in the E.A. in the Court of the Subordinate Judge, Gudivada who passed the decree, praying the Court to condone the delay in these approaching the Court and to bring them on record as the legal representatives of the deceased third decree-bolder to enable them to continue the execution proceedings. They first filed an application before the Subordinate Judge's Court, Machilipatnam, so which Court the decree was transfered for execution but they were directed to present the application in the Gudivada Court which originally passed the decree. The learned Subordinate Judge, Gudivada dismised the application holding that there were no valid grovnds for condoning the inordinate delay of three months in filing the petition for being added as legal representatives.

(2.) ORDER XXII, Rules 12 C.PC. provides that nothing in rules 3,4 and 8 shall apply to proceedings in excution of a decree or order. It was held by a Full Bench of the Madras High Court in Venkatachalam vs. Rama Swamy 1 that condition imposed on the legal representatives of a deceased-plantiff to be brought on record within the time allowed by law does not attach to execution proceedings. In the case of the death of a decree holder, the execution proceedings do not abate. By reason of Sec. 146 and Or. 21, Rule 16 C.P.C., the legal representatives of a decree holder, who died during the pendency of an execution petition, can be substituted in the execution petition and be allowed to continue it Article 120 of the LIMITATION ACT, 1963, which prescribes a limitation period of 90 days applies only to the application that have to be filed by the legal representatives to be brought on record only in the case of suits or appeals from such suits and not to execution proceedings as Rule 12 of ORDER 22 of C.P.C. expressly provides that nothing in Rules 3, 4 and 8 of ORDER 22 shall apply to the proceedings in execution of a decree or order.