Chatterji, J.:— The respondents obtained a money decree against one Zafarullah. In execution of that decree in execution case No. 54 of 1935, Zafarullah was arrested. When brought to Court he intimated that he would file an application for adjudication as an insolvent and in accordance with the provisions of Section 55(4) of the CPC, one Razaq Mian stood surety for him. In the surety bond Razaq hypothecated certain properties belonging to him. Zafarullah did file an application for insolvency, but it was dismissed by the District Judge. On appeal to the High Court, the order was confirmed. Boon after the disposal of that insolvency case by the District Judge, the decree-holder filed on 5th March 1937 an application for execution of the decree against Razaq, the surety. On 5th April 1937, notice under O. 21, R. 22 was issued on Razaq fixing 26th April 1937 for his appearance. On 26th April 1937, Razaq appeared and filed an objection mainly on the ground that the application for execution was not maintainable against him as the provisions of law had not been complied with. On the same day the Court issued a notice against Razaq calling upon him to produce the judgment-debtor and also to show cause why the execution should not proceed against him. On 22nd May 1937, the date fixed in the notice, Razaq neither produced the judgment-debtor nor shewed cause; but he filed an application for time and it appears that time was allowed and the case was adjourned to 12th June 1927.
2. On 12th June the Court issued an order of attachment of the properties mentioned in the security bond. In the meantime, the execution proceedings were stayed pending the disposal of the High Court appeal arising out of the insolvency proceeding. As the execution proceeding was stayed, Razaq did not want to proceed with his objection which was dismissed for non-prosecution on 21st September 1937. After the High Court appeal was disposed of, the decree-holder made an application to continue the execution proceeding which was allowed. On 4th May 1938, after the sale proclamation had been issued Razaq died.
3. Thereafter, on 17th May 1938 his legal representatives appeared and filed an objection stating that the execution could not proceed against them. This objection was allowed by the Subordinate Judge on 24th June 1938. He held that there were certain irregularities in the execution proceeding and in face of them he would not continue the execution. Against that order the decree-holder filed an appeal to the District Judge who allowed it. He took the view that the liability of Razaq under the surety bond having been admittedly incurred, the decree-holder was entitled to proceed in execution against his properties. He further held that it was not necessary in the execution proceeding to substitute the heirs of Razaq or to issue any notice against them. Against this decision this miscellaneous second appeal has been preferred by the heirs of Razaq.
4. Three points are urged in this appeal; first, that the execution which was started on 5th March 1937 against Razaq was not maintainable; because the requisite notices were not served on him; second, that the decree-holder should have, after the death of Razaq, substituted his legal representatives under Section 50 of the CPC, and issued notices against them under O. 21, R. 22; third, that the decree-holder could not proceed at the same time both against the surety and the judgment-debtor. In connexion with this last point, I ought to have mentioned, that when the Subordinate Judge allowed the objection of these appellants, the decree-holder prayed for arrest of the judgment-debtor which was granted.
5. I will deal with the second point first-Indeed the execution proceeding had already reached the stage of the sale proclamation-having been issued when Razaq died; but it by no means follows that the decree-holder was at liberty to proceed with the execution against a dead man. The learned District Judge seems to be of opinion that in the circumstances the execution proceeding can be continued without substituting the heirs of Razaq. I am unable to support this view of the law. Suppose, in an execution proceeding, the judgment-debtor dies after attachment and issue of sale proclamation and the property is sold without substituting his heirs, who in that case will exercise the statutory right conferred by O. 21, R. 89 of the CPC, and make the necessary application? A dead man is on the record and his legal representatives may have no knowledge of the proceedings. On principle, I do not think the Court can sell the property of a dead man. I am therefore of opinion that the decree-holder before he could proceed with the execution should have substituted the heirs of Razaq. In this connexion reference may be made to the Full Bench decision of the Madras High Court in 59 Mad 4611 where though the facts were dissimilar, the principle was laid down that execution proceeding could not be continued against the estate of a dead man without bringing on the record his legal representatives. What happened there was that after the sale proclamation the judgment-debtor died and the sale was held without substituting his legal representatives. Subsequently they made an application to set aside the sale. It was held by their Lordships that the sale was void and was liable to be set aside at the instance of the legal representatives. The proper order therefore to be passed in the present case is that the decree-holder should, in order that he may continue the execution proceeding, substitute in the place of deceased Razaq his legal representatives. While substituting them the Court should issue notice under O. 21, R. 22 against them, and their objections, whatever they may have to urge, should be heard before the execution proceeding can be further continued against them.
6. On behalf of the respondents, Mr. Jaleshwar Prasad contends that inasmuch as the legal representatives already entered appearance in the execution proceeding, there was no necessity of issuing a notice under O. 21, R. 22. He has relied on a decision of this Court in 7 Pat 790,2 where a notice under O. 21, R. 22 was in fact issued but not served and the legal representatives entered appearance and filed objections. It was held that no fresh notice under O. 21, R. 22 was necessary. That case is quite distinguishable from the facts of the present case. It has been held by the Privy Council in 42 Cal 723 and also by this Court in 11 Pat 2414 that the issue of a notice under O. 21, R. 22 unless the Court dispenses with it, is necessary to give jurisdiction to the Court to execute the decree.
7. In this view it is not necessary to deal with the other objections because when the legal representatives, the appellants, have been substituted and been served with notices they will be at liberty to urge their objections and they will be dealt with according to law. I would therefore allow the appeal, set aside the order of the District Judge and direct that the Subordinate Judge do proceed with the execution in accordance with law giving opportunity to the decree-holder to substitute in the place of the deceased Razaq his legal representatives, the present appellants. In the circumstances the parties should bear their own costs throughout. I may mention that the attachment that has already been effected of the properties of Razaq should continue so long as the present execution proceeding is to last.
Rowland, J.:— I agree. The case illustrates the difficulties that arise out of attempts to take short cuts in matters of procedure. The correct procedure for the initiation of proceedings against the surety was first to call on him to produce the judgment-debtor; next on his failure to do so to call on him to shew cause against forfeiture and execution; next on failure to shew cause to the satisfaction of the Court to obtain an order of the Court directing execution to proceed against the person and properties of the surety. The correct procedure after the death of Razaq was to substitute his heirs in the execution proceeding and obtain the leave of the Court to continue the execution against them; thereafter to serve them with notices under O. 21, R. 22 and on their appearance the Court after hearing and determining any objections that they might make, would permit or disallow the continuance of the execution. When the heirs of Razaq appeared in this case they seem to have appeared in their personal capacity as owners of property sought to be taken in execution of a decree not passed against them. They were not yet persons who had taken Razaq's place as judgment-debtors, a position which would not be theirs until the decree-holder had obtained substitution of their names in his execution petition. The Subordinate Judge's order seems to have been understood by the parties as meaning that the execution could not proceed against the heirs of Razaq though the point he had to decide was that the sale could not be held so long as no representative of Razaq was on the record. In that view he was certainly right and the District Judge was in error. Some colour is lent to the view of law taken by the District Judge by a decision in 47 Mad 635 where it seems to have been held that a sale of the effects of a deceased judgment-debtor was merely irregular and not illegal. But this decision was overruled by the Full Bench of the same Court in 59 Mad 461, a decision based on the Privy Council authority in 42 Cal 72 which was interpreted in a similar sense in this Court in 11 Pat 241. The view taken by the Full Bench of the Madras High Court was that such a sale was void and not merely voidable. Such a sale cannot proceed.
8. When the execution case is properly constituted by bringing heirs of Razaq on the record, the time will come for them as his representatives to raise objections, if any, as to the result of the departure from the regular order of procedure in the matter of the initiation of execution proceedings against Razaq, and for the Court to consider those objections.
G.N/R.K
9. Appeal allowed.