UPADRASTA VENKATALAKSHMAMMA Vs. GARIKIPATI SESHAGIRI RAO

JUDGEMENT

(1.) In this case a decree was obtained by the plaintiff for money against one Ramachandrayya on the 29 February, 1912. After a number of other execution petitions eventually a petition, E.P. No. 125 of 1924, was put in for execution of the decree against Ramachandrayya on the 18 February, 1924. In the course of those proceedings it came to light that Ramachandrayya had disappeared seven or eight years earlier, and therefore it was presumed that he was dead. The decree- holder in those circumstances wished to prosecute the same execution petition against Ramachandrayya's widow as his legal representative and put in an application E.A. No. 543 of 1924 for that purpose on the 5 July, 1924. It-will be seen that" that application to treat the widow as Ramachandrayya's legal representative was put in more than 12 years after the date of the decree. It was contended that on account of that lapse of time, Section 48 of the Code of Civil Procedure prevented the execution, against the widow continuing; The widow took some other objections to the execution in the District Munsif's Court. The District Munsif overruled them all. She then went on appeal to the Subordinate Judge, who disposed of two of her contentions, including this one that execution was barred by Section 48 of the Code, and dismissed her appeal. She has therefore come to this Court on second appeal.

(2.) The contention before us is that in execution proceedings, if the judgment- debtor dies while the proceedings are pending, no legal representative of the judgment-debtor can be brought on record in those proceedings, but a new execution petition has to be presented. It is urged that in the Code there is no procedure for adding the legal representative of a judgment-debtor in the course of an execution petition. If that is so, then Ramachandrayya's widow could not be added in E.P. No. 125 of 1924, which was launched against Ramachandrayya himself, and by the time the application was made to take proceedings against the widow in E.A. No. 543 of 1924, it was too late to start a new execution petition because 12 years from the date of the decree had elapsed. It will be seen therefore that, unless the decree-holder is entitled, when his judgment-debtor dies in the course of execution proceedings, to bring on record the judgment-debtor's legal representative in the execution proceedings already initiated, the decree- holder in this case must fail.

(3.) It may be noticed that the general principles of the Civil P. C. are that, if a party can take proceedings against another person and that person dies, the remedy does not lapse but proceedings may be taken against the dead person's representative. Section 146 of the Code lays down that Save as otherwise provided by this Code or by any law for the time being in force, where any proceeding may be taken or application made by or against any person, then the proceeding may be taken or the application may be made by or against any person claiming under him.