ANNADA PRASAD MITRA Vs. SUSHIL KUMAR MANDAL

JUDGEMENT

(1.) These two appeals tire on behalf of the judgment-debtor and they arise out of two analogous proceedings under Section 47, Civil P.C., which were heard together and were disposed of by one and the same judgment in both the Courts below. The material facts are not in controversy and may be shortly stated as follows : There were two rent decrees obtained by one Naba Kishore Mandal as the managing shebait of certain deities against the appellant, Annada Prosad Mitra, one on 31 May 1928, and the other on 23 June 1934. After certain proceedings with which we are not concerned at present both these decrees were put into execution in the year 1935 and the two execution oases were registered as Cases Nos. 109 and 110 of 1935. In course of these proceedings, sale proclamations were duly issued directing the sales to be held on 10 January 1936. Before the sales were held, Naba Kishore died on 12 November 1935. The matter was reported to the Court and the Court granted several adjournments in order that proper steps might be taken in the matter. As no steps were taken, the two execution oases were dismissed for default on 17 December 1935.

(2.) It appears from the records that the shebaits of the deities who were fairly large in number took the opinion of the Government Pleader at Alipore as to the proper way of proceeding in the matter and the opinion given was to the effect that all the shebaits together should file a suit for settling a scheme for management of the debutfcer property and get a Receiver appointed in the suit, and the Receiver thus appointed should continue the execution proceedings. Owing to various dissensions amongst the shebaits themselves there was considerable delay in instituting the suit and it was brought only in the year 1938. On 21st December 1938, the present respondent was appointed a Receiver in respect of the debutter property and on 9 January 1939, he filed applications in the two execution cases for setting aside the orders of dismissal for default passed in them and for leave to continue the proceedings on behalf of all the shebaits. The trial Court allowed these applications and set aside the orders of dismissal for default. On appeal the judgment was affirmed. The judgment- debtor has now come up to this Court. 2. Mr. Panohanan Ghose who appears in support of the appeal has argued before us that the Courts below ought to have thrown out the applications of the Receiver on the ground of limitation. His contention is really of a two-fold character. In the first place, he says that under Order 22, E. 12, Civil P.C., no application for substitution) can be made by the heirs of a deceased decree-holder. They can only make a fresh application for execution which must be governed by Art. 182, Limitation Act. In the second place, it is urged that even if the application is for leave to continue the proceedings started by Naba Kishore, it is hit by Art. 181, Limitation Act, as it has not been made within three years from the death of Naba Kishore. I have no doubt that there may be some force in these arguments. Order 22, Rule 12, Civil P.C., lays down that nothing in Rules 3, 4 and 8 of the order would apply to proceedings in execution of a decree or order.

(3.) There is divergence of judicial opinion as to the proper interpretation of this rule. According to one view as there is no provision or machinery provided by the Code of Civil Procedure for substitution of the legal representatives of a deceased decree-holder and as these proceedings can never abate, the heirs or legal representatives can only file a fresh application for execution. This was the view taken by the Madras High Court in Palaniappa Chettiar V/s. Valliammai Achi ( 27) 14 A.I.R. 1927 Mad. 184, which was subsequently overruled by a Full Bench decision of the same Court in Venkatachalam Chetti V/s. Ramaswamy Servai ( 32) 19 A.I.R. 1932 Mad. 73. A somewhat similar view was taken by this Court in Akshoy Kumar V/s. Surendra Lal ( 26) 13 A.I.R. 1926 Cal. 957 where it was held by the learned Judges that it was neither competent nor necessary for the legal representatives of a decree-holder to make an application for substitution. B.B. Ghose J., who delivered the judgment observed, however, that on the death of the applicant for execution it was open to the legal representatives to apply immediately for carrying on the proceedings in execution of the decree or to apply for fresh execution under Order 21, Rule 16, Civil P.C. In an earlier Calcutta case Manmatha Nath Mitter V/s. Rakhal Chandra ( 10) 14 C.W.N. 752, the question arose at the appellate stage as the appellant died during the pendency of an appeal from an order in an execution proceeding. It was held that it was open to the legal representatives to apply for leave to prosecute the appeal. The Madras Full Bench decision referred to above, namely, Venkatachalam Chetti V/s. Ramaswamy Servai ( 32) 19 A.I.R. 1932 Mad. 73, laid down the proposition that the legal representatives of a deceased decree-holder could be substituted under Section 146 and Order 21, Rule 16, Civil P.C., and allowed to continue the proceeding. It was not to be treated, as a fresh application and, consequently, was not hit by Section 48, Civil P.C. This view found favour with the Bombay High Court in Annachrya V/s. Narayan Pandurang ( 3) 20 A.I.R. 1933 Bom. 358 and the Patna High Court expressed the same opinion in 13 Pat. 777.6 The majority of judicial decisions are thus in favour of the view that the deceased decree-holder's legal representatives oan carry on the execution proceedings started by the decree-holder and need not file a fresh application. If it is not a fresh application Art. 182, Limitation Act, would not certainly be applicable.