TANSUKHLAL Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS appeal was preferred by Tansukhlal against the judgment and decree of the Senior Civil Judge, Jodhpur dated 31st March, 1967, and the respondent has also filed cross -objections.

(2.) ON 14th May, 1973, learned Counsel for the respondent reported that Tansukhlal had died about one year back and as his legal representatives had not been brought on record till then, the appeal had abated. On the request of the counsel for the appellant the case vas adjourned to enable him to ascertain facts about the death of Tansukhlal. On 16th July, 1971, Mr. B.L. Purohit who was representing Tansukhlal filed his power on behalf of Vimal Kumar son of Tansukhlal and also submitted an application that he may be allowed to continue the appeal, at the same time alleging that Order 22 Rule 3 C.P.C. which bars such application is against the provisions of Section 146 C.P.C and is also unconstitutional. No application for bringing on record the legal representatives of the deceased has been made within the prescribed period nor has any application been made for setting aside the abatement and as such the appeal has undoubtedly abated. But the learned Counsel has contended that the provisions of Order 22 Rules 3 and 4 are violative of Article 14 of the Constitution in as much as they provide for making of the application within the period prescribed by the Law of Limitation whereas Rule 12 of the said Order is not subject to the Law of Limitation and specifically Rules 3, 4 and 8 have been made inapplicable to the proceedings in execution of a decree or order.

(3.) IN Gulabdas v. Lakshman Narhar I.L.R. III Bom. 221 it was observed that: The Code of Civil Procedure does not provide that applications for executions shall, like suits, abate by the death of the judgment creditor, nor have any capses been cited to us to show that the analogy of the sections applicable to pending suits governs pending proceedings in execution. Before execution can be had at all, a right must have been fully established; and delay is then an indulgence to the judgment -debtor. The legislature may have thought that the ordinary terms of limitation prescribed by Article 171 of Schedule II of Act XV of 1877 and the corresponding provisions in Act IX of 1871 afforded protection enough against laches on the part of a judgment -creditor; but we shall not, at any rate, be justified in saying without authority that the proceedings in execution abate just as in a pending litigation. Nor, if they do abate, can we properly apply to the application of representatives, coming in to carry on the execution, the limitation prescribed by Article 171 of Schedule 11 of Act XV of 1877, which is expressly confined to the 'legal representative of a deceased plaintiff' not of a deceased judgment -creditor. The latter may, it seems, come in at any time, as his coming in his contemplated by Article 179, Expl. 1, subject always to the same conditions as would apply to his principal. Now one of the considerations on which the doctrine of limitation and prescription may be said to be based is that it is necessary that title to property and matters of right in general should not be in a state of constant uncertainty, doubt and suspense. This is in accordance with the maxim interest reipublicae ut sit finis litum -the interest of the State requires that there should be an end to litigation Statutes of limitation and prescription are thus statutes of peace and repoce. Until the proceedings in a suit are finally terminated and the rights of the parties are adjudicated the state of uncertainty about the rights of the parties continues and therefore the Legislature thought it fit keeping the same object in view that the application for substitution of the legal representatives of the deceased plaintiff or defendant be made within the period prescribed by the Law of Limitation so that the proceedings may be continued That is the reason why Order 22 Rules 3 and 4 require the applications for the legal representatives being made a party in the case of the deceased be within a period provided by the law of limitation. But after the suit is finally decided and the rights of the parties have been determined, the state of uncertainty no longer continues and the presumption is that the party it self should be keen to recover the fruits under the decree. Besides this, Section 48 of the Code of Civil Procedure and other articles under the law of limitation already prescribe a period for the enforcement of the decrees and orders passed by the court, and, therefore, it was was quite unnecessary to apply Rules 3, 4 and 8 of Order 22 to the execution proceedings. If the legal representatives of a decree holder allow the time provided in Section 48 C.P.C. to lapse, then automatically they would be debarred from executing the decree. It is therefore, clear that the litigants whose rights have already been determined and have culminated in decree or order capable of execution stand on a different footing. It is not that the Legislature has made any differentia between any class of decree -holders or any class of suits. The provisions of Order 22 Rules 3 and 4 apply to all classes of suit Similarly Rule 12 applies to all classes of decrees.