JAGAT TARINI DASI AND ON HER DEATH HER HEIRS AND LEGAL REPRESENTATIVES MANMATHA NATH MITTER Vs. PANDIT RAKHAL CHANDRA TEWARY

JUDGEMENT

(1.) The substantial question of law raised in this appeal is, whether it is competent to the appellants, who are representatives of an assignee of a decree for rent, to carry on proceedings in execution of the decree initiated by the original decree-holder. It appears that one Nobin Chandra Ghose held under Jagat Tarini Dasi a putni which had been created on the 3 May 1874. On the 28 May 1895 Nobin Chandra created a durputni in favour of Kishori Lal Ghose. The latter obtained a decree for rent against the respondents on the 26 January 1903 and applied for execution thereof on the 26 January 1906. Meanwhile the putnidar had defaulted to pay rent to the zemindar who sued him, obtained a decree and in proceedings in execution thereof purchased the putni on the 15 August 1906. Subsequently on the 23rd December 1906 the zemindar, Jagat Tarini Dasi, the auction-purchaser of the putni, served a notice upon the durpatnidar under Section 167 of the Bengal Tenancy Act and annulled his encumbrance on the 23 January 1907. Kishori Lal executed a conveyance in favour of Jagat Tarini in respect of all arrears of rent realisable from the tenants as also of all decrees for rent obtained against them. The conveyance further authorised the purchaser to carry on all execution proceedings pending at the time and the transferor also covenanted that he would join in all applications for execution and if necessary, consent to be made a party-defendant. On the 4 February 1907 Jagat Tarini applied to the Court of first instance where the execution proceedings instituted by Kishori Lal were still pending, for leave to proceed with execution. The judgment-debtors raised various objections to which effect was given by the Court. An appeal was then preferred to the District Judge who affirmed the order of dismissal of the application for execution. Jagat Tarini thereupon preferred the present appeal, and upon her death during the pendency of the appeal, her legal representatives, now appellants before this Court, were brought on the record.

(2.) On behalf of the respondents, a preliminary objection has been taken to the hearing of the appeal on the ground that as the appeal is directed against an order made in the course of execution proceedings, upon the death of the appellant, her legal representatives, are not entitled to prosecute the appeal, and in support of this proposition, reliance has been placed upon Order 22, Rule 12 of the Code of 1908. This preliminary objection is of a somewhat novel character and would not be worthy of serious consideration but for the insistence with which it has been pressed. The Rule to which reference is made provides that nothing in Rules 3, 4 and 8 of Order 22 shall apply to proceedings in execution of a decree or order. It has been seriously contended that this indicates that upon the death of an applicant for execution of decree, his legal representatives are not entitled to carry on the proceedings, and that their only remedy is to initiate a fresh proceeding, though in the latter event they may be successfully met by a plea of limitation on the part of the judgment-debtors. In our opinion, the Rule does not lend the remotest support to the Contention of the respondent Rules 3, 4 and 5 of Order 22, provide for the procedure to be followed in case of death of one of several plaintiffs or of the sole plaintiff or of one of several defendants or of the sole defendant during the pendency of a suit. Rule 12 then provides that this procedure shall not apply to proceedings in execution of a decree or order. It is difficult to appreciate how from this the inference can be legitimately drawn that Rule 12 indicates that upon the death of an execution-creditor or of a judgment-debtor the proceedings lapse. Rule 12 in substance gives legislative sanction to the fairly well-settled doctrine under the old Code that the provisions of the Chapter relating to substitution upon the death, marriage or insolvency of parties, do not apply to proceedings in execution between the decree-holder and the judgment-debtor. To take one illustration, under the Code of 1882, it had been ruled in the cases of Gulabdas v. Lakshman Narhar 3 B. 221 Hiraohand Harikisandas V/s. Kasturohand Kasidas 18 B. 224; C. W. Stowell V/s. Ajndhia Nath 6 A. 255 and Abidunnissa Khatoon V/s. Amirunnissa Khatoon 2 C. 327 : 4 I.A. 66 : 20 W.R. 305 that neither Section 102 of Act VIII of 1859 nor Section 355 of Act XIV of 1882 was applicable to proceedings in execution of decrees. In the first of the cases, it was expressly ruled that provision of the Limitation Act which governs an application by a person claiming to be the legal representative of a deceased plaintiff in a suit; does not apply to the representatives of a deceased judgment-creditor claiming permission to continue execution proceedings commenced by him, because the Code does not provide that an application for execution shall like suits abate by the death of the judgment-creditor. There was some difference of judicial opinion, however, on the subject in the case of Dulari V/s. Mohan Singh 3 A. 759 and this controversy has now been set at rest by the legislature by Order 22, Rule 12 of the new Code. We must consequently hold that upon the death of the appellant during the pendency of the appeal, it was open to her legal representatives, to apply for leave to prosecute the appeal, and that the order in their favour in this behalf was rightly made. The preliminary objection must, therefore, be overruled.

(3.) In support of the appeal, three grounds have been urged against the decision of the learned District Judge, namely, first, that it was not necessary for the assignee to make a fresh application for execution under Section 232 of the Code of 1882, secondly, that the application which was actually made by the assignee was not barred by limitation under Section 22 of the Limitation Act, and thirdly, that notwithstanding the provisions of Section 148 (h) of the Bengal Tenancy Act, the assignee is entitled to execute the decree for rent under that Act.