Execution Against a Deceased Judgment‑Debtor: No Abatement, But Impleading Legal Representatives Is Mandatory—Ex Parte Status Irrelevant

Case: Ganga Jogta v. Nand Lal (deceased) through LRs, CMPMO No. 294 of 2025 (2025 HHC 27337)

Court: High Court of Himachal Pradesh, Shimla

Coram: Hon’ble Mr. Justice Ajay Mohan Goel

Date: 13 August 2025

Approved for reporting: Yes

Introduction

This judgment addresses a recurring but under‑discussed execution question: where the judgment‑debtor (JD) dies during the pendency of execution proceedings, and had earlier been proceeded ex parte both at trial and in execution, can the decree‑holder (DH) press forward without bringing the JD’s legal representatives (LRs) on record?

The petitioner, Smt. Ganga Jogta (the decree‑holder), challenged an order of the Executing Court directing her to move an application to implead the legal representatives of the deceased JD, Shri Nand Lal. The petitioner’s core stance was that the Code of Civil Procedure (CPC) does not obligate such impleadment—especially where the JD had consciously remained absent and was proceeded ex parte in both the suit and the execution. The respondents (LRs of the JD) countered that Section 50 CPC necessarily requires execution against LRs after a JD’s death and that ex parte status of the JD makes no legal difference.

The High Court dismissed the petition, affirming the Executing Court’s direction, and clarified the interface between Section 50 CPC and Order XXII Rule 12 CPC with authoritative reliance on Supreme Court precedent.

Summary of the Judgment

Holding: Where a judgment‑debtor dies before complete satisfaction of the decree, the decree‑holder must bring the JD’s legal representatives on record to execute the decree against the estate of the deceased (Section 50 CPC). This requirement is unaffected by the fact that the JD was proceeded ex parte.
No abatement in execution: By virtue of Order XXII Rule 12 CPC, execution proceedings do not abate on the death of the DH or the JD; however, that does not eliminate the need to implead LRs to proceed against the estate.
Time management and consequences: Consistent with Supreme Court precedent, the executing court may fix a reasonable time to bring LRs on record; failure to do so can lead to dismissal of the execution for default (but not as abated). Alternatively, a fresh execution petition may be filed impleading LRs, which in law is a continuation of the timely‑filed execution.
Outcome: Petition dismissed; the Executing Court’s direction to implead the LRs is upheld.

Analysis

Statutory Framework

Section 50 CPC: If a JD dies before full satisfaction of the decree, the decree may be executed against the JD’s legal representatives. This necessarily implies that the LRs, who represent the estate and are liable only to the extent of the estate in their hands, must be brought on record to bind the estate.
Order XXII Rule 12 CPC: Rules 3, 4, and 8 (requiring substitution within fixed time limits on death and providing for abatement in suits) do not apply to execution. Result: execution does not abate on death of parties, and the rigid substitution timelines in suits do not govern execution proceedings.
Principle of Order XXII Rule 5 CPC: While Order XXII technically does not apply to execution, the Supreme Court has recognized that the principles of Rule 5 (determination of who is a “legal representative”) can be applied in execution to resolve competing LR claims.

Precedents Cited and Their Influence

V. Uthirapathi v. Ashrab Ali & Ors., (1998) 3 SCC 148

The Supreme Court held that execution proceedings do not abate upon the death of the DH or JD. If a JD dies after an execution petition is filed, the decree‑holder may bring the LRs on record “at any time,” as no abatement or rigid substitution timeline applies in execution. The Court clarified:
- There is no abatement of execution for non‑substitution within a fixed period.
- The executing court may fix a reasonable time to implead LRs; failure to do so can result in dismissal for default (not abatement).
- A fresh execution petition impleading LRs can be filed, which is in law a continuation of the timely‑filed execution.
This precedent directly undergirds the High Court’s holding that the DH cannot bypass impleadment of LRs and also guides the permissible procedural responses to a party’s death during execution.
Varadarajan v. Kanakavalli & Ors., (2020) 11 SCC 598

Reiterating Uthirapathi, the Supreme Court reaffirmed that the abatement rules applicable in suits do not apply in execution. It also recognized that disputes over who qualifies as an LR can be determined in execution on the principles of Order XXII Rule 5. The High Court relies on this to fortify the doctrinal clarity: no abatement in execution, but LR impleadment remains the correct course.
Venkatachalam Chetti v. Ramaswami Servai, ILR (1932) 55 Mad 352 : AIR 1932 Mad 73 (FB)

The Full Bench of the Madras High Court, as noted in Mulla’s CPC, established that abatement penalties do not attach to execution proceedings—an early and influential statement echoed by the Supreme Court and adopted in this judgment.
Mulla on CPC (15th Ed., 1997), Vol. 3, p. 2085

Cited for the proposition that Order XXII Rule 12 benefits the decree‑holder in execution by avoiding abatement, while allowing heirs to step in at any time or through a fresh execution application. The High Court accepts this doctrinal framework.

Legal Reasoning

Impleadment is the procedural vehicle to bind the estate: Section 50 CPC permits execution “against the legal representatives” of a deceased JD. This permission is meaningful only if those LRs are brought on record so that the estate is properly represented and bound by execution process. Without impleadment, process would run against a deceased person, which is a nullity for want of representation.
Order XXII Rule 12 removes abatement, not the obligation to represent the estate: The Court harmonizes Section 50 with Order XXII Rule 12: execution does not abate upon death, but the DH must still move for impleadment to proceed against the estate. The absence of abatement simply means there is no rigid limitation for substitution in execution, and the execution remains legally alive while the court may regulate substitution within a reasonable time.
Ex parte status is immaterial: The JD’s earlier non‑appearance does not negate the rights of the estate (and hence, of the LRs) to be heard on execution‑related issues after the JD’s death. Ex parte status in the suit or execution does not authorize the DH to proceed against a deceased person’s property without impleading and serving the LRs.
Case management tools recognized by Supreme Court: The executing court may fix a reasonable time for LR impleadment; on non‑compliance, execution can be dismissed for default (distinct from abatement). The DH may also file a fresh execution petition impleading LRs; in law, such a petition is treated as a continuation of the earlier timely execution, preserving the execution’s legal continuity.

Key Holdings Synthesized

Execution cannot continue against a deceased JD without impleading the JD’s LRs; Section 50 CPC is the gateway.
Order XXII Rule 12 CPC prevents abatement in execution but does not dispense with LR impleadment.
Ex parte conduct by the JD does not diminish the requirement to implead LRs on death.
Executing courts can manage timelines for substitution and dismiss for default if DH is recalcitrant; alternatively, DH may file a fresh execution that is treated as a continuation of the earlier one.

Impact and Practical Significance

For decree‑holders:
- Do not proceed with coercive execution steps (attachment, sale, delivery) post‑death of the JD unless LRs are impleaded. Process against a deceased person risks nullity and setting aside of later steps.
- No rigid substitution limitation applies, but expect the court to fix a reasonable deadline; comply promptly to avoid dismissal for default.
- If the execution stands dismissed for default, you may file a fresh execution impleading LRs; such filing is treated as a continuation of the earlier timely execution for legal purposes (as per Supreme Court guidance).
For legal representatives:
- Upon impleadment, the LR represents the estate and may raise permissible execution objections (e.g., satisfaction, limitation of liability to estate assets, process irregularities) without reopening the decree merits.
- Conflicts over LR status can be adjudicated in execution on the principles of Order XXII Rule 5 CPC.
For executing courts (Himachal Pradesh and beyond):
- Clear guidance to insist on impleadment of LRs after the JD’s death, irrespective of the JD’s prior ex parte status.
- Adopt case‑management by fixing reasonable timelines; on default, dismiss the execution for non‑prosecution rather than as abated.
- Ensure due process by serving LRs before carrying out execution measures affecting the estate.
Systemic effect: The decision tidily aligns trial‑court execution practice with the Supreme Court’s jurisprudence, reducing procedural missteps (like posthumous attachments) that can delay or invalidate execution and generate further litigation.

Complex Concepts Simplified

Ex parte: When a party does not appear despite service, and the court proceeds without their participation. An ex parte decree is still a valid decree unless set aside through proper proceedings.
Legal Representative (LR): A person who in law represents the estate of a deceased individual (Section 2(11) CPC). In execution, LRs are liable only to the extent of the estate of the deceased in their hands (Section 50 CPC).
Abatement: In suits, failure to substitute a deceased party within the prescribed time can cause the suit to abate (come to a standstill and end). Order XXII Rule 12 ensures this consequence does not apply to execution proceedings.
Dismissal for default (in execution): If a decree‑holder fails to take procedural steps (like bringing LRs on record) despite court directions and reasonable time, the court may dismiss the execution for want of prosecution. This is different from abatement.
Continuation of execution: A fresh execution petition filed after the death of a party, with LRs impleaded, is in law treated as a continuation of the timely‑filed execution petition (per Supreme Court), thereby maintaining legal continuity of the enforcement process.

Practice Pointers

For Decree‑Holders:
- On learning of a JD’s death during execution, immediately move an application under Section 50 CPC to implead LRs, with particulars establishing who the LRs are and the extent of the estate.
- Seek an order fixing a reasonable time for impleadment and service upon LRs to avoid challenges to subsequent execution steps.
- If there is uncertainty or dispute as to LRs, request the executing court to determine LR status on the principles of Order XXII Rule 5 CPC.
For Legal Representatives:
- Upon impleadment, promptly enter appearance and clarify the estate’s assets and the extent of liability; raise any execution‑stage objections available under Section 47 CPC and Order XXI as appropriate.
For Courts:
- Do not permit execution to proceed against a deceased JD or the estate without LR impleadment and proper notice.
- Manage timelines proactively; if DH defaults on substitution, consider dismissal for default rather than treating the execution as abated.

Why the Ex Parte Status Does Not Change the Result

The petitioner’s key argument was that the JD’s ex parte status meant the decree could be executed without impleading anyone after his death. The High Court correctly rejected this for reasons grounded in both text and principle:

Textual: Section 50 CPC speaks of execution “against the legal representatives” when the JD dies before satisfaction. There is no exception for ex parte JDs.
Due process and representation: Execution acts upon property; once the person dies, only the LRs can represent the estate. Proceeding without them would deprive the estate of notice and opportunity on execution‑stage issues—contrary to law.
Supreme Court alignment: Uthirapathi and Varadarajan, while removing abatement, presuppose and require LR impleadment as the correct procedural pathway after death.

Conclusion

This decision reaffirms and applies settled Supreme Court doctrine to a common practical scenario: the death of an ex parte judgment‑debtor during execution. The High Court’s central message is clear:

Execution proceedings do not abate on a party’s death (Order XXII Rule 12 CPC), but
the decree‑holder must implead the deceased JD’s legal representatives to proceed against the estate (Section 50 CPC),
and the JD’s prior ex parte status does not dilute this requirement.

By endorsing the power of executing courts to fix reasonable timelines for substitution and to dismiss for default upon non‑compliance—while recognizing that a fresh, properly constituted execution is a continuation of the earlier one—the judgment provides a pragmatic, rights‑sensitive roadmap for execution practice. Its emphasis on correct representation of the estate safeguards due process without imposing the harshness of abatement. For practitioners and courts alike, it offers authoritative clarity that should reduce avoidable missteps and reinforce the integrity of execution proceedings in Himachal Pradesh and beyond.