RAMNIBAS AGARWALLA Vs. MT. PADUMI KALITA AND ORS.

JUDGEMENT

(1.) TWO points have been urged by Mr. Sen, the learned Counsel for the Appellant in appeal No. M.A. (S) 4 of 1964, - firstly that substitution of the heirs of one of the deceased decree -holders, who died during execution, is not possible under the law but a fresh application for execution should have been filed and secondly that without a succession certificate having been obtained under Section 214 of the Indian Succession Act, execution cannot proceed.

(2.) THE facts of the case are that a joint decree was passed in favour of a number of decree -holders and a joint application for execution was filed into Court. During the pendency of this application one of the decree -holders died. The other decree -holders on record applied to the executing Court for substituting the heirs of the deceased decree -holder and for proceeding with the execution. This was ordered negativing the above two contentions raised by the judgment -debtor before the executing Court. On appeal to the Subordinate Judge, it was held that the order of the executing Court was correct and no interference was called for. In the Court below an adjustment of the decree was also applied for and apparently as no application was made within the time provided for under Order 21, Rule 2 of the Code of Civil Procedure this point has not been seriously pressed before me.

(3.) HAVING thus cleared the preliminary objection, it would be necessary to consider the two points on which reliance has been placed by Mr. Sen. Regarding the substitution of the heirs of a deceased decree -holder, the procedure is clearly laid down in Order 21, Rule 15 of the Code of Civil Procedure which is as follows: (Rule reproduced.)