Sunday, 6 September 2015

Whether there is limitation for bringing legal heirs on record in execution application?

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 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 any event, the execution petition cannot be 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 a 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, each, in law, only a continuation of a 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."
Chattisgarh High Court
Smt. Yashoda Devi vs Neeta Devi on 25 September, 2008
Citation: AIR2009Chh12
Honble Shri Satish K Agnihotri J Dated: 25/09/2008 : Judgement WRIT PETITON UNDERARTICLE 227 OF THE CONSTITUTION OF INDIA (Passed on 25th day of September, 2008)
1. By this petition, the petitioner impugns the legality and validity of the order dated 25.01.2006, passed by the 9th Additional District Judge (F.T.C.) Durg, in execution case No. 10-A/2000, whereby the application of the decree-holders to bring legal heirs of the judgment-debtor namely Ram Bharos Chhapariya, was allowed.
2. The indisputable facts, in brief are that a decree was passed on 20.04.2001 (Annexure P/1) against Ram Bharos Chhapariya. During the pendency of the execution proceedings, Ram Bharos Chhapariya died on 01.03.2003. The respondents decree-holders filed an application on 27.03.2004 for bringing the legal heirs of the deceased judgment-debtor on record which was allowed by the executing court. Thus, this petition.
3. Shri Tiwari, learned counsel appearing for the petitioners would submit that since an application for bringing legal heirs of the judgment-debtor on record was not moved within a period of 90 days, the execution proceeding abated and as such the application for bringing the legal heirs of the judgment debtor could not have been allowed after a delay of 90 days. Shri Tiwari relies on section 50 of the Code of Civil Procedure, 1908 (for short `the C.P.C.').
4. Per contra, Shri Patankar, learned counsel appearing for the respondents would submit that the Limitation Act, 1963 is not applicable in case of bringing legal heirs of the judgment- debtor on record as is evident from the provisions of Order XXII Rule 12 of the C.P.C. and the judgments of Hon'ble Supreme Court in the matter of Shri V.Uthirapathi v. Ashrab Ali and others1 and Hasham Abbas Sayyad v. Usman Abbas Sayyad and others2.
5. I have heard learned counsel appearing for the parties, perused the pleadings and documents appended thereto. On bare perusal of the Order XXII Rule 12 it is evident that the Rules 3, 4 and 8 of Order XII of C.P.C. are not applicable to the proceedings in execution of a decree or order. The Hon'ble Supreme Court in the matter of Shri V.Uthirapathi (supra) , while considering the limitation period in making the application for bringing legal heirs on record in execution proceedings, observed as under:
"10. If during the pendency of a regular execution proceeding filed on the basis of a decree or order of a civil court, the decree- holder or the judgment-debtor dies and his legal representatives are not brought on record within ninety days, can the civil court dismiss the execution petition as abated?
11. Order 22 Rule 12 of the Code of Civil Procedure, reads as follows:
"Order 22 Rule 12: Application of order to proceedings. - Nothing in Rule 3, 4 and 8 shall apply to proceedings in execution of a decree or order."
12. In other words, the normal principle arising in a suit - before the decree is passed - the legal representatives are to be brought on record within a particular period and if not, the suit could abate, - is not applicable to cases of death of the decree- holder or the judgment-debtor in execution proceedings.
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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 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 any event, the execution petition cannot be 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 a 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, each, in law, only a continuation of a 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."
6. Subsequently, in the matter of Hasham Abbas Sayyad (supra), the Hon'ble Supreme Court observed as under:
"9. A final decree proceeding may be initiated at any point of time. No limitation is provided therefor. However, what can be executed is a final decree, and not a preliminary decree, unless and until final decree is a part of the preliminary decree."
7. Applying the well settled principles of law to the facts of the case on hand wherein the executing court has allowed application of the decree holder to bring legal heirs of the judgment-debtor (petitioners) on record, is unexceptionable. The order is legal and proper and does not warrant interference.
8. Accordingly, the petition is dismissed. No order asto costs.

JUDGE
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