The question,
whether the nature of that land has been changed in the revenue
record from non-agricultural to agricultural or vice versa, does not
create any obstruction for execution of the decree.
IN THE HIGH COURT AT BOMBAY
APPELLATE SIDE, BENCH AT AURANGABAD
CIVIL REVISION APPLICATION NO. 21 OF 2014
Kasturabai w/o. Vyankat Kumbhar,
Versus
Pandit Sonusingh Patil,
CORAM
: A.I.S. CHEEMA, J.
Dated: 3rd February, 2014.
Citation; 2015(1) MHLJ 59 Bom
Heard applicants and respondent No. 2 finally on
admission stage. The present Civil Revision Application arises out
of order passed by the learned Civil Judge, Junior Division,
2.
Chalisgaon, District Jalgaon in Regular Darkhast No. 59/1986.
The judgment debtors filed an application under Order
XXII, Rule 2 r/w. 151 of Civil Procedure Code, raising objection that
on death of decree holder No. 2 Bhimkuvarbai w/o. Sonusing Patil,
her legal heirs were not brought on record and thus, the execution
deserves to be dismissed. Another ground was raised that the
decree holder in revenue record has converted the land from
agricultural to non-agricultural and thus, the decree cannot be
executed because as per the decree, the possession of 13 Gunta
land, which was to be handed over, was agricultural land and not
the non agricultural land.
2.
The Trial Court heard the parties and the application
under Order XXII, Rule 1 and 2 of C.P.C. has been rejected by the
Trial Court. Thus, this Civil Revision Application raises point for
consideration whether the impugned order suffers from material
irregularity or exercise of jurisdiction illegally.
3.
The learned counsel for the petitioners referred Order
XXII, Rule 1, 2 and 3 of C.P.C. to submit that there will be
abatement. The learned counsel accepts that on death of decree
holder No. 1 - Sonusing Patil, his legal heirs were brought on
record and they are on record. According to him, when
Bhimkuwarbai w/o. Sonusing Patil (Original plaintiff No.1) expired,
it was necessary to bring on record that legal heirs on record in
the capacity of legal heirs of decree holder 1 - Sonusingh will be
legal heirs also of Bhimkuwarbai w/o. Sonusing Patil in addition to
The learned counsel for respondents has referred the
4.
their capacity of legal heirs of her husband Sonusing Patil.
Order XXII, Rule 12 of C.P.C. which reads as under :-
"12. Application of Order to proceedings.-
Nothing in rules 3, 4 and 8 shall apply to
proceedings in execution of a decree or order."
He has also relied on the case of V. Uthirapathi Vs. Ashrab Ali
and Ors. reported in A.I.R. 1998 SC 1168. The Apex Court in
paragraph Nos. 12, 14 and 15 has observed as under :-
"12. In other words, the normal principle
arising in a suit before the decree is passed that
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.
13.
14. In our opinion, the above statement of
law in
Commentary
on
the
CPC,
Mulla's
correctly represents the legal position relating
to the procedure to be adopted by the parties in
execution proceedings and as to the powers of
the Civil Court.
It is clear, therefore, that if after the filing
15.
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 the decree holder;
OR, in case of death of the judgment debtor,
the decree holder can file 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."
It is quite apparent that abatement would not be
there and legal heirs of Bhimkuwarbai w/o. Sonusing Patil were
on record and note can be taken by the Court in the record and
proceed with the execution.
5.
6.
As regard to other objection that the nature of land
has been changed from agricultural to non-agricultural land, the
learned counsel for the petitioners submits that the trial Court did
not make any reference to that objection raised. The learned
counsel for the respondent No. 2 submits that the execution is
specific only regarding part of Survey Nos. 509/A and 509/B. He
submits that the total area of these lands is large size and part of
them have been made non-agricultural. However, according to
him, 13 Gunta land, which is to be recovered from the judgment
The learned counsel for the petitioners submits that
7.
debtors in executions is still agricultural land.
as per his instruction, 13 Gunta land which is claimed from
judgment debtor, has also been converted in to non-agricultural
by the decree holder. According to him, the trial Court did not
decide objection in this regard. Learned counsel for respondent
No. 2, however, submits that the application was not argued on
that count and hence, the order does not speak regarding that.
8.
The judgment debtors are in possession of 13 Gunta
land regarding which the execution is pending. The question,
whether the nature of that land has been changed in the revenue
record from non-agricultural to agricultural or vice versa, does not
create any obstruction for execution of the decree.
9.
There is no substance in this revision. The same is
rejected.
[ A.I.S. CHEEMA, J. ]
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