SUKHDEO BHAGAT Vs. BISHWANATH SINGH

JUDGEMENT

(1.) THIS appeal is brought on behalf of the judgment-debtors against the order of the Additional Subordinate Judge of Motihari, dated the 9th September, 1960, allowing substitution of the heirs of Tilesara Devi, one of the decree-holders in Execution Case No. 35 of 1955, and also allowing substitution of the heirs of Keshwar Koeri, one of the judgment-debtors, who died during the pendency of the execution case,

(2.) ON behalf of the appellants learned Counsel contended that Rules 3, 4 and 8 of Order 22 are not applicable to execution proceedings and there is no provision in the Code of Civil Procedure which empowered the lower Court, to permit substitution of the heirs of Tilesara Devi and Keshwar Koeri in the execution case. Learned Counsel for the appellants, therefore, submitted that the order of the learned Additional Subordinate Judge was vitiated in law and should be set aside and the execution case should be held as incompetent. In our opinion there is no substance in the argument advanced by learned Counsel for the appellants. The question of law involved in this case was the subject-matter of consideration in Venkatachalam Chetti v. Ramaswamy Servai, ILR 55 Mad 352: (AIR 1932 Mad 73 FB). It was held by the Full Bench of the Madras High Court in that case that the legal representative of a deceased decree-holder who died during the pendency of an execution petition fried by him could be substituted in his place in the execution petition and be allowed to continue the execution case. In the course of his judgment in the Madras case Madhavan Nair, J. said that if Rule 3 of Order 22 does not apply, then obviously there can be no objection for proceeding under Section 146 of the Code of Civil Procedure and Order 21, Rule 16 and that under Section 146, there being no other procedure provided, a legal representative of a decree-holder may make an application which may be made by the decree-holder, and under Order 21, Rule 16, where a decree is transferred by assignment or operation of law as happens in the case of the death of a decree-holder, the transferee may apply for the execution of the decree. The learned Judge also said that there were cases in which it has been held that where a decree-holder dies or transfers his decree pending the execution application filed by him, the transferee decree-holder including his heir is entitled under Order 21, Rule 16 to apply for continuing the pending execution application by substituting his name in it and that such an application is not to be considered as a fresh execution application. The decision of the Full Bench of the Madras High Court has been followed by a Division Bench of the Patna High Court in F. A. McNaught v. Mt. Saraswati Thakurain, AIR 1935 Pat 117. It was held in that case by Mohammad Noor, J. that where a decree-holder dies pending the execution proceedings, his representative can get his name substituted and continue the execution without a fresh application. Reference may also be made to Mt. Gulab Kuer v Syed Mohamed Zaffar Hassan Khan, 6 Pat LJ 358; (AIR 1921 Pat 180), where it was held by the Patna High Court that in a case of assignment by a decree-holder of his interest to another, an application by the assignee for substitution of his name in place of that of the assignor is an application under Order 21, Rule 16, of the Code of Civil Procedure, and not an application under Order 22, Rule 10, and if at the time of such application execution proceedings are pending, the application is not a fresh application for execution but merely an application for bringing the assignee on the record and for continuing the pending execution proceedings. In view of the principle laid down by these authorities we are of opinion that there is no merit in the argument advanced by learned Counsel for the appellants in this case. We accordingly dismiss this appeal with costs.