VENKATACHALAM CHETTI Vs. RAMASWAMI SERVAI (DEAD)

JUDGEMENT

(1.) The question for decision in this case is whether the legal representative of a deceased decree-holder who died during the pendency of an execution petition filed by him can be substituted in his place and be allowed to1 continue it. The deceased decree-holder obtained a decree against the respondent in S.C. No. 266 of 1914 on the file of the Sub-Court of Sivaganga and filed several execution, petitions to execute it. Before the last petition E.P. No. 330 of 1926 was disposed of, he died. His legal representative, the petitioner before us, then applied to the Court for permission to amend the execution petition filed by his father by adding his name to1 it and to continue the execution proceedings. The present petition is more than twelve years after the decree and would, therefore, be barred by Section 48 of the Civil P. C. if it is treated as a fresh execution petition; but if the petitioner is allowed to continue the execution petition already filed by the deceased decree-holder, then his execution petition is not barred by limitation. The District Munsif passed the following order on the petition: This is an application by the legal representative of a deceased decree- holder for permission to continue the execution filed by the deceased decree-holder. The decision in Palaniappa Chettiar V/s. Valliammai Achi (1926) I.L.R. 50 M. 1 : 51 M.L.J. 745, which is applicable to the facts of the case lays down that an execution petition filed by a decree-holder cannot be prosecuted or continued after his death by his legal representative. I follow the decision and dismiss the application. The fact that the decree is more than twelve years ago is no ground for giving the go-by to the said decision. The application is dismissed.

(2.) In Ralaniappa Chettiar V/s. Valliammai Achi (1926) I.L.R. 50 M. 1 : 51 M.L.J. 745 the transferee decree-holder in a suit on the Original Side of this Court applied for execution of the decree. When the application was pending he died, and his widow made an application that she should be brought on record as. his representative and be permitted to continue the execution petition filed by him. The learned Judge passed an order complying with her request. In appeal, this order was set aside, and the learned Judges held that it followed from the provisions of Order 22 of the Civil P. C. that the only course open to the legal representative in the circumstances was to file a separate and fresh application. If this decision is correct, there is no doubt that it would cover the present case as pointed out by the learned District Munsif; but doubts have been thrown on the soundness of the reasoning of the judgment in this case in some of the subsequent decisions of this Court, especially in the decision in Venkatalakshmamma V/s. Seshagiri Rao (1930) 60 M.L.J. 628 In Sundayee Animal V/s. Krishnan Chetti (1928) I.L.R. 51 M. 858 : 55 M.L.J. 497 the learned Judges (Wallace and Thiruvenkatachariar, JJ.) without saying anything about the correctness or otherwise of the ruling in Palaniappa Chettiar V/s. Valliammai Achi (1926) I.L.R. 50 M. 1 : 51 M.L.J. 745 refused to apply it to the case of an appeal against an order in execution as they were of opinion that there were obvious difficulties which will arise if the ruling is applied to cases of appeal. In Ramanathan Chettiar V/s. Rumanathan Chettiar (1928) 30 L.W. 995 the learned Judges (Wallace and <JGN>Madhavan Nair</JGN> , JJ.) expressed the opinion that they were not prepared to extend to the case of a judgmentdebtor the ruling in Palaniappa Chettiar V/s. Valliammai Achi (1926) I.L.R. 50 M. 1 : 51 M.L.J. 745. In C.M.S.A., No. 140 of 1928 it was expressly held by Jackson, J., that the ruling in Palaniappa Chettiar V/s. Valliammai Achi (1926) I.L.R. 50 M. 1 : 51 M.L.J. 745 would not apply to the case of a judgment-debtor. In none of these cases was the correctness of the ruling in Palaniappa Chettiar V/s. Valliammai Achi (1926) I.L.R. 50 M. 1 : 51 M.L.J. 745 directly challenged. It will be noticed that all these cases related to petitions in regard to the legal representatives of a deceased judgment-debtor and are on that ground distinguishable from the decision in Palaniappa Chettiar V/s. Valliammai Achi (1926) I.L.R. 50 M. 1 : 51 M.L.J. 745 which dealt with a petition by the legal representative of a deceased decree-holder. In the next case Venkatalakshmamma V/s. Seshagiri Rao (1930) 60 M.L.J. 628 which was also one which related to execution of a decree against the legal representative of a judgment-debtor, the learned Judges (Reilly and Ariantakrishna Aiyar, JJ.) pointed out the abovementioned distinction between the case before them and the case in Palaniafipa Chettiar V/s. Valliammai Achi (1926) I.L.R. 50 M. 1 : 51 M.L.J. 745 but directly dealt with the soundness of the judgment in Palaniappa, Chettiar v. Valliammai Achi (1926) I.L.R. 50 M. 1 : 51 M.L.J. 745. Apart from the serious inconveniences and unjust consequences which were involved in the decision, the learned Judges pointed out that the decision was based upon an erroneous interpretation of the rules in Order 22 of the Civil P. C.; and that the decision is in conflict with the long established practice not only of this Court but also of the other High Courts in India according to which, subject to the rule of limitation, the legal representative of a deceased decree-holder was always allowed to continue the application filed by his predecessor without being compelled to file a fresh execution application. They also pointed out that some important decisions which have a direct bearing on the question were not considered in Palaniappa Chettiar V/s. Valliammai Achi (1926) I.L.R. 50 M. 1 : 51 M.L.J. 745. The arguments before us have proceeded more or less on the lines of reasoning adopted in Venkatalakshmamma V/s. Seshagiri Rao (1930) 60 M.L.J. 628 the appellant taking his stand on that decision, and the respondent arguing against it.

(3.) At the outset, it will be convenient to refer to a few of the relevant provisions of the Civil P. C.. If these provisions make it necessary that a fresh application should be filed by the legal representative of a deceased decree-holder as pointed out in Palaniappa Chettiar V/s. Valliammai Achi (1926) I.L.R. 50 M. 1 : 51 M.L.J. 745 then the ruling in that case will have to be applied irrespective of the unjust consequences that may result from its application, and also of the fact that it marks a departure from the long established practice. Order 22 of the Code of Civil Procedure deals with the procedure that should be followed on the death, marriage and insolvency of parties. Rule 1 of that order states that the death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives.