SHANKAR BALCHAND MARWADI Vs. HIRALAL BALCHAND MARWADI

JUDGEMENT

(1.) This is an appeal in execution of the decree in First Appeal No. 243 of 1913, decided on June 21, 1915. The last application for execution was in darkhast No. 1048 of 1925 filed on October 3, 1925, The order in the execution proceedings was confirmed by the High Court on November 20, 1928. Defendant No. 3 was a surety for defendant No. 2 in the original suit, and the High Court confirmed the liability of defendant No. 8 on November 20, 1928. Defendant No. 3 died on January 10, 1929, and the present application was made to continue the execution proceedings against the legal representatives of the surety defendant No. 3. The lower Court allowed the application.

(2.) It is urged on behalf of the appellant that it was necessary for the decree- holder to bring a separate application for execution against the legal representative of the surety defendant No. 3, and that such an application would be beyond time under Section 48 of the Civil Procedure Code, having been made more than twelve years after the date of the decree, and reliance has been placed on the decisions in the cases of Palaniappa Chettiar V/s. Valliammai Achi (1926) I.L.R. 50 Mad. 1, Akhoy Kumar Talukdar V/s. Surendra Lal Pal (1926) 30 C.W.N. 735 and Mirza Muhammad Sadiq Ali Khan V/s. Sajjad Mirza alias Munney Agha (1927) I.L.R. 3 Luc. 126

(3.) In Palaniappa Chettiar v, Valliammai Achi it was held that the legal representative of a decree-holder, who died during the pendency of an execution petition filed by him, cannot be substituted in his place in the execution petition and be allowed to continue it, and that the question must be decided by reference to the specific terms of the Civil P. C.. The only provision allowing the legal representative of a deceased decree-holder to execute the decree is contained in Order XXI, Rule 16. The case of Palaniappa Chhettiar V/s. Valliammai Achi related to an application by a legal representative of the decree holder to be brought on the record. The case of Akhoy Kumar Talukdar V/s. Surendra Lal Pal has no application to the facts of the present case, for, the question turned on the application of Section 73 of the Civil Procedure Code. During the course of the judgment, however, it was observed as follows (p, 737):- On the death of the applicant for execution it was open to the legal representatives of the deceased decree-holder to apply immediately for carrying on the proceedings in execution of the decree or to apply for fresh execution under Order. 21, Rule 16 of the Civil P. C..