Execution Case No. 03 of 2011 · Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.6881 of 2012 ====================================================== DEO DUTTA SINGH SON OF LATE BAIJNATH SINGH RESIDENT OF MOHALLA PUSTAKALAY LANE, EAST LOHANIPUR, P.S. KADAM KUAN, TOWN AND DISTRICT PATNA .... .... PETITIONER/S VERSUS 1. LEELA DEVI WIFE OF LATE SURESH SINGH RESIDENT OF MOHALLA PUSTAKALAY LANE, EAST LOHANIPUR, P.S. KADAM KAUN, TOWN AND DISTRICT PATNA 2. RAJESH SINGH SON OF LATE SURESH SINGH RESIDENT OF MOHALLA PUSTAKALAY LANE, EAST LOHANIPUR, P.S. KADAM KAUN, TOWN AND DISTRICT PATNA 3. MUKESH SINGH SON OF LATE SURESH SINGH RESIDENT OF MOHALLA PUSTAKALAY LANE, EAST LOHANIPUR, P.S. KADAM KAUN, TOWN AND DISTRICT PATNA 4. KANCHAN SINGH DAUGHTER OF LATE SURESH SINGH RESIDENT OF MOHALLA EAST LOHANIPUR, P.S. KADAM KAUN, TOWN AND DISTRICT PATNA PUSTAKALAY LANE, .... .... RESPONDENT/S ====================================================== Appearance : For the Petitioner/s : Mr. Pankaj Maijorwar, Advocate For the Respondent/s : Mr. Arun Kumar Singh No.3,Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE VIKASH JAIN C.A.V. ORDER 7 18.04.2013 The present application has been filed for setting aside the order dated 17.3.2012 (Annexure-4) passed by Execution Munsif, Patna in Execution Case No. 03 of 2011, inter alia, directing the petitioner to take necessary action for bringing the
Legal Reasoning
names of the legal heirs of the deceased sole defendant in the decree as the names of the judgment-debtors who are the legal heirs of the sole defendant do not find place in the decree. 2. The short facts leading to the present petition are that the petitioner filed an Eviction Suit No. 9/2005 for eviction 2 Patna High Court CWJC No.6881 of 2012 (7) dt.18-04-2013 2 / 6 of the defendant Suresh Singh which was decreed in the petitioner’s favour. The petitioner preferred Execution Case No. 8/2009 in that behalf and on notices being issued it transpired from the service report that the defendant Suresh Singh had died. The said Execution Case No.8/2009 subsequently came to be dismissed for non-prosecution and later on Execution Case No. 3/2011 for execution of the decree passed in Eviction Suit No. 9/2005 was preferred against the legal heirs of the deceased defendant Suresh Singh. In this backdrop the impugned order was passed directing the petitioner to take necessary steps for bringing the names of the legal heirs of the deceased defendant in the decree whose names do not find place in the decree. 3. It is submitted on behalf of the petitioner that the decree may be executed against legal heirs of the deceased defendant without requiring their names to be incorporated in the decree. It is submitted that there is no such requirement in Section 50 C.P.C. which permits execution of the decree against the legal representatives of the deceased. 50. Legal representative.-(1) Where 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 representative of the deceased. 3 Patna High Court CWJC No.6881 of 2012 (7) dt.18-04-2013 3 / 6 4. It is further submitted that Order 21 Rule 35 provides that possession of immovable property shall be delivered to the decree holder by removing any person bound by the decree who refuses to vacate the property. Provisions of Section 12 of the Bihar Building (Lease, Rent & Eviction) Control Act also contemplates that an order for recovery of possession of premiser shall be finding on all persons in occupation thereof and vacant possession shall be given to the landlord. 5. Reliance is also placed on a decision of the Apex Court reported in AIR 1998 SC 1168 (V.Uthirapathi vs. Ashrab Ali and others) to the effect that a fresh execution case against the legal heirs of the deceased judgment debtor was maintainable.
Legal Reasoning
6. Learned counsel for the respondents on the other hand opposes the petition on the ground that the decree cannot be executed against the legal heirs of the deceased defendant until their names are incorporated in the decree itself. In his submission the use of the words “the holder of the decree may apply to the court which passed it to execute the same” in Section 50 CPC shows that execution of the decree against legal representatives can be effected only upon an application to the Court which passed the decree. Reliance is also placed on the 4 Patna High Court CWJC No.6881 of 2012 (7) dt.18-04-2013 4 / 6 following decisions :- 1. AIR (39) 1952 PATNA 333 [Rehi Damodar Laljee vs. Sone Basant Lal and others] 2. AIR 1928 Privy Council 162 [(Kunwar) Jang Bahadur vs. Bank of Upper India Ltd., Lucknow, in liquidation]. 3. AIR 1936 Madras 205 [Kanchamalai Pathar-Auction purchaser vs. Ry. Shahaji Rajah Sahib and others- Decree-holders]. 7. Having considered the rival submissions of the parties and also the judicial decisions relied upon this Court is of the view that the matter stands resolved in terms of the decision of the Hon’ble Supreme Court in AIR 1998 SC 1168 (V.Uthirapathi vs. Ashrab Ali and others) (supra). While approving the views expressed in Mulla’s Commentary on CPC (Vol.3) p. 2085 (15th Ed., 1997) the Hon’ble Supreme Court has held as under:- “ 15. It is clear, therefore, that if after the filing of an execution petition in time, the decree holder dies and his legal representatives do not come on record or the judgment debtor dies and his legal representatives are not brought on record, then there is no abatement of the execution petition. If there is no abatement, the position in the eye of law is that the execution petition remains pending on the file of the execution Court. If it remains pending and if no time limit is prescribed to bring the legal representatives on record in execution proceedings, it is open in case of death of the decree holder, for his legal representative to come on record at any time. The execution application cannot even be dismissed for default behind the 5 Patna High Court CWJC No.6881 of 2012 (7) dt.18-04-2013 5 / 6 back of the decree holder’s legal representatives. In case of death of the judgment debtor, the decree holder could file an application to bring the legal representatives of the judgment debtor on record, at any time. Of course, in case of death of judgment debtor, the Court can fix a reasonable time for the said purpose and if the decree holder does not file an application for the aforesaid purpose, the Court can dismiss the execution petition for default. But in the execution petition cannot be any event dismissed as abated. Alternatively, it is also open to the decree holder’s legal representatives, to file a fresh execution petition in case of death of the decree holder, OR, in case of death of the judgment debtor, the decree holder can file a fresh execution petition impleading the legal representatives of the judgment debtor, such a fresh execution petition, if filed, is, in law, only a continuation of the pending execution petition - the one which was filed in time by the decree holder initially. This is the position under the Code of Civil Procedure.” (stress laid). 8. In view of the fact that in the instant case the decree was passed against judgment debtor, who however died only thereafter, therefore, the fresh execution petition impleading the legal representatives of the judgment debtor had to be treated only as a continuation of the earlier execution petition which had been filed within time by the decree holder initially, and is thus maintainable. 9. Considering the clear enunciation of law by the Hon’ble Supreme Court as above any views expressed to the extent inconsistent therewith in the decisions relied upon by the 6 Patna High Court CWJC No.6881 of 2012 (7) dt.18-04-2013 6 / 6 respondents must therefore yield to the law of the land. In any event even the Privy Council held in (Kunwar) Jang Bahadur’s case (supra) that failure to get an order for substitution from the Court which passed the decree was merely a procedural defect which might be waived. In the Patna decision in Rehi Damodar Laljee’s case (supra) this Court was also of the view that execution of the decree against the legal representatives of a deceased J.D., was an irregularity in procedure which can be waived. 10. In the above circumstances, therefore, the impugned order dated 17.3.2012 is set aside and the learned Court below directed to proceed in Execution Case no.3 of 2011 in accordance with law.
Decision
11. The writ petition stands allowed. Chandran (Vikash Jain, J)