MANJULABAI KASHINATH MANTRI Vs. PANDURANG JAYARAM MANTRI

JUDGEMENT

(1.) This is an appeal in execution proceedings by the original judgment-creditor in a decree obtained by her in a suit on the original side of the High Court by which she was awarded maintenance at the rate of Rs. 10 a month and residence against two persons who were brothers of her husband. The decree was obtained on July 15, 1918. It appears that the first judgment-debtor died in 1921 and the second judgment-debtor in 1927, and the names of the legal representatives of neither of them were substituted in their places on the record of the suit. Then for the first time on July 10, 1930, an application was made by the judgment-creditor on the original side of this Court for transfer of the execution proceedings to the Thana Court, and that being granted, the present darkhast has been brought in the Thana Court on July 15, 1930. This darkhast, which is filed against the legal representatives of the two original judgment-debtors, has been opposed by the latter on the ground, among others, that, as they were not on the record in the High Court proceedings before the transfer was made, the darkhast cannot lie against them, and it was contended by them that under Section 50 of the Civil Procedure Code when a judgment-debtor dies before the decree has been fully satisfied, the holder of the decree may apply to the Court which passed it to execute the same against the legal representatives of the deceased. The learned First Class Subordinate Judge accepted that contention and held that the application for bringing the names of the legal representatives on the record ought to have been made in the High Court before the application for transfer was made and that the application as made to the Thana Court cannot lie under that section ; and in support of that view the learned Judge has relied upon a ruling of this Court in Hirachand Harjivandas V/s. Kasturchand Kasidas (1893) I.L.R. 18 Bom. 224 which is a case decided under Section 234 of the old Code corresponding to the present Section 50. It was held in that case that in similar circumstances the proper procedure was to apply to the Court which passed the decree for bringing the names of the legal representatives on the record. It appears that some of the other High Courts have taken a different view, but the decision of our Court in Hirachand Harjivandas V/s. Kasturchand Kasidas has not been overruled.

(2.) It is contended on behalf of the appellant that time ought to have been given to her in order that she may make an application to the High Court for bringing the names of the legal representatives on the record. That contention cannot be accepted here in appeal, because it ought to have been made before the trial Court which might or might not have allowed her the indulgence of making an application on the original side of this Court. But, so far as the facts go, the decision in Hirachand Harjivandas V/s. Kasturchand Kasidas is undoubtedly against the appellant. There is a later case of the Judicial Committee of the Privy Council, viz., Jang Bahadur V/s. Bank of Upper India Ld (1928) L.R. 55 I.A. 227 and some reliance has been placed upon that case here on behalf of the appellant to show that an application for bringing the names of the legal representatives on the record to the Court to which the decree is transferred is only an irregularity of procedure and not of jurisdiction, and that, therefore, the application would lie at least against those legal representatives who have not objected to the jurisdiction of the Court. This Privy Council decision would have no application to the facts of this case because there the judgment-debtor died after the order of transfer was made by the original Court, and it was in those circumstances that it was held that it did not matter if the application was made to the Court to which the decree was transferred, because the judgment-debtor had died after the application was made and the decision really is that although the application was irregular so far as the procedure was concerned, that irregularity could be waived if the judgment-debtor's legal representatives have accepted the position and have submitted to the execution proceedings for a long time. Here, however, both the judgment-debtors had died before the application for transfer was made. That application itself could not lie unless the legal representatives of the judgment-debtors were brought on the record, and it would not be for the Court to which the execution proceedings have been transferred to make an order for bringing the names of the legal, representatives on the record, because the application to transfer the proceedings after the judgment-debtors had died would not be an application in accordance with law, and hence the Court to which the decree is transferred cannot execute the decree against those persons who were not parties to the decree before the decree was transferred. That being so, the Privy Council case would have no application here, and the case would be governed, as I have said above, by the decision of this Court in Hirachand Harjivandas V/s. Kasturchand Kasidas.

(3.) We agree, therefore, with the decision of the lower Court that the darkhast is liable to be dismissed as the Thana Court had no jurisdiction to maintain it. We, therefore, dismiss this appeal. Murphy, J.