Madhavan Nair, J. — The question for decision in this case is whether the legal representative of the deceased decree-holder who died during the pendency of an execution petition filed by him can be substituted in his place and be allowed to continue it. The deceased decree-holder obtained a decree against the respondent in S.C No. 266 of 1914 on the file of the Sub-Court of Sivaganga and filed several execution petitions to execute it. Before the last petition E.P 330 of 1926 was disposed of, he died. His legal representative, the petitioner before us, then applied to the Court for permission to amend the execution petition filed by his father by adding his name to it and to continue the execution proceedings. The present petition is more than twelve years after the decree and would, therefore, be barred by Sect. 48 of the Code of Civil Procedure if it is treated as a fresh execution petition; but if the petitioner is allowed to continue the execution petition already filed by the deceased decree-holder, then his execution petition is not barred by limitation. The District Munsif passed the following order on the petition:—
“This is an application by the legal representative of a deceased decree-holder for permission to continue the execution fill d by the deceased decree-holder. The decision in Palaniappa Chettiar v. Valliammai Achi (1) which is applicable to the facts of the case lays down that an execution petition filed by a decree-holder cannot be prosecuted or continued after his death by his legal representative. I follow the decision and dismiss the application. The fact that the decree is more than twelve years ago is no ground for giving the go-by to the said decision. The application is dismissed.”
In Paianiappa Chettiar v. Valliammai Achi , the transferee decree-holder in a suit on the Original Side of this Court applied for execution of the decree. When the application was pending he died, and his widow made an application that she should be brought on record as his representative and be permitted to continue the execution petition filed by him. The learned Judge passed an order complying with her request. In appeal, this order was set aside; and the learned Judges held that it followed from the provisions of O. 22 of the Code of Civil Procedure that the only course open to the legal representative in the circumstances was to file a separate and fresh application. If this decision is correct, there is no doubt that it would cover the present case as pointed out by the learned District Munsif; but doubts have been thrown on the soundness of the reasoning of the judgment in this case in some of the subsequent decisions of this Court, especially in the decision in Venkatalakshmamma v. V. Seshagiri Rao . In Sundayee Ammal v. Krishnan Chetti (2), the learned Judges (Wallace and Tiruvenkata Achariar, JJ.) without saying anything about the correctness or otherwise of the ruling in Palaniappa Chettiar v. Valliammai Achi refused to apply it to the case of an appeal against an order in execution as they were of opinion that there were obvious difficulties which will arise if the ruling is applied to cases of appeal. In Ramanathan Chettiar v. Ramanathan Chettiar the learned Judges (Wallace and Madhavan Nair, JJ.) expressed the opinion that they were not prepared to extend to the case of a judgment-debtor the ruling in Palaniappa Chettiar v. Valliammai Achi . In C.M.S.A No. 140 of 1928 it was expressly held by Jackson, J., that the ruling in Palaniappa Chettiar v. Valliammai Achi would not apply to the case of a judgment-debtor. In none of these cases was the correctness of the ruling in Palaniappa Chettiar v. Valliammai Achi directly challenged. It will be noticed that all these cases related to petitions in regard to the legal representatives of a deceased judgment-debtor and are on that ground distinguishable from the decision in Palaniappa Chettiar v. Valliammai Achi which dealt with a petition by the legal representative of a deceased decree-holder. In the next case, Upadrasta Venkatalakshmamma v. Garikipati Seshagiri Rao which was also one which related to execution of a decree against the legal representative of a judgment-debtor, the learned Judges (Reilly and Anantakrishna Ayyar, JJ.) pointed out the above-mentioned distinction between the case before them and the case in Palaniappa Chettiar v. Valliammai Achi but directly dealt with the soundness of the judgment in Palaniappa Chettiar v. Valliammai Achi . Apart from the serious inconveniences and unjust consequences which were involved in the decision, the learned Judges pointed out that the decision was based upon an erroneous interpretation of the rules in O. 22 of the Code of Civil Procedure; and that the decision is in conflict with the long established practice not only of this Court but also of the other High Courts in India according to which, subject to the rule of limitation, the legal representative of a deceased decree-holder was always allowed to continue the application filed by his predecessor without being compelled to file a fresh execution application. They also pointed out that some important decisions which have a direct bearing on the question were not considered in Palaniappa Chettiar v. Valliammai Achi , The arguments before us have proceeded more or less on the lines of reasoning adopted in Upadrasta Venkatalakshmamma v. Garikipati Seshagiri Rao the appellant taking his stand on that decision, and the respondent arguing against it.
At the outset, it will be convenient to refer to a few of the relevant provisions of the Code of Civil Procedure. If these provisions make it necessary that a fresh application should be filed by the legal representative of a deceased decree-holder as pointed out in Palaniappa Chettiar v. Valliammai Achi , then the ruling in that case will have to be applied irrespective of the unjust consequences that may result from its application, and also of the fact that it marks a departure from the long established practice. O. 22 of the Code of Civil Procedure deals with the procedure that should be followed on the death, marriage and insolvency of parties. R. 1 of that Order states that “the death of a plaintiff or a defendant shall not cause the suit to abate if the right to sue survives.” Rr. 3 and 4 respectively provide for the substitution during the course of a suit of a legal representative for a deceased plaintiff or a deceased defendant. R. 3 with which we are concerned provides in Sub-R. 1 that where a plaintiff dies and the right to sue survives “the Court on an application made in that behalf shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit,” and in Sub-R. 2 it is stated that “where, within the time limited by law no application is made under Sub-R. 1, the suit shall abate so far as the deceased plaintiff is concerned………”. R. 4 contains a similar provision relating to the death of a defendant. These are followed by the important rule, R. 12 newly introduced in the present Code, which states that “nothing in Rr. 3 and 4……shall apply to proceedings in execution of a decree or order”. In this connection, I may also draw attention to two other provisions of the Code, Sect. 146 and O. 21, R. 16. Sect. 146 states “save as otherwise provided by this Code or by any law for the time being in force, where any proceeding may be taken or application made by or against any person, then the proceeding may be taken or the application may be made by or against any person claiming under him”. O. 21, R. 16 provides that “where a decree……is transferred by an assignment in writing or by operation of law, the transferee may apply for execution of the decree to the Court which passed it; and the decree may be executed in the same manner and subject to the same conditions as if the application were made by such decree-holder.”
The reasoning adopted by the learned Judges in Palaniappa Chettiar v. Valliammai Achi in arriving at their conclusion is as follows:—It would appear from the judgment that it was argued before them that it was open to the legal representative of a deceased decree-holder to carry on proceedings in execution under Sect. 146 of the Code of Civil Procedure and under O. 21, R. 16. The learned Judges this argument by pointing out that these provisions only declare that a proceeding which may be taken by one person may be taken by another claiming under him, and that they did not lay down any procedure. This is what they stated:—
“Sect. 146 of the Code is of no assistance, because it merely enacts that, save as otherwise provided, a procedure which may be taken by any person may be taken by any other claiming under him. Since a decree-holder may file an execution petition, his legal representative after his death may file one. The competence of a transferee decree-holder to do this is specially provided for by O. 21, R. 16, and assuming that that rule applies by force of the words “by operation of law” to the case of representative of a deceased decree-holder such as we are now dealing with, the matter is carried no further.”
And then they pointed out that the answer to the question raised is to be found in R. 12 of O. 22, read with Rr. 3 and 4. Their observations on this point which form the basis of the judgment are as follows:—
“for an answer to the question raised, it is necessary to go to O 22, which relates to the ‘death, marriage and insolvency of parties.’ Rr 3 and 4 of this order respectively provide for the substitution during the course of a suit of a legal representative for a deceased plaintiff or a deceased defendant; and construing the word ‘suit’ so as to embrace execution proceedings, R. 3 would furnish the required authority. By R. 12, however, this rule (with two others) is expressly rendered inapplicable to execution proceedings, an expression of intention on the part of the framers of the rules so clear that it is really unnecessary to look further.”
From these extracts it is clear that the learned Judges thought that R.3 of O .22 with which we are concerned read with R. 12 indicated the procedure applicable to the case before them, that such a procedure being provided for, Sect. 145, Civil Procedure Code, would not apply to the case and that therefore the legal representative should file a fresh application and that it was not open to him to continue the execution proceedings already pending. R. 12 says that nothing in R. 3 shall apply to proceedings in execution of a decree or order. It does not say that the legal representative should not be brought on record in the course of execution proceedings. It appears to me that the learned Judges derived their conclusion as a sort of inference from Sub-R. 1 of R. 3. Their reasoning seems to be this: that, if the provision in R. 3, Sub-R. 1, that when a plaintiff in a suit dies and the right to sue survives, the Court in the course of the suit shall make the legal representative on an application made in that behalf, a party to the suit, will not apply to execution proceedings, as indeed it will not by force of R. 12, then it must follow inferentially that in the case of the death of a decree-holder during the pendency of an execution petition filed by him, his legal representative can come on the record and proceed with the execution only by filing a separate execution petition. Otherwise he would be following the procedure of Sub-R. 1 of R. 3 which is declared inapplicable by R. 12. This it appears to me amounts to, if I may say so respectfully, applying R. 3, Sub-R 1 to execution proceedings which is what is prohibited by R. 12. This construction of the rule would also result in this anomaly that, while execution proceedings can in law never abate on the death of a decree-holder, they will nevertheless abate because it is not open to the legal representative to get himself substituted in the pending execution petition. Either R. 3 of O. 22 applies to execution proceedings or it does not. The legislature says distinctly in R. 12, that it does not apply to execution proceedings. What does it mean? The Legislature has provided under R. 3 that if a plaintiff dies, his legal representative should come on record to continue the suit within the time allowed by law, i.e, 90 days from the date of the death of the deceased plaintiff, and if he does not do so, then the suit will abate. This is a penalty imposed upon the legal representative for not taking prompt steps to proceed with the suit. R. 12 simply says that this penalty which applies to suits will not attach to execution proceedings in the case of the death of a decree-holder; or, in other words, in the case of the death of a decree-holder the execution proceedings do not abate. This, in my opinion is all what the rule means and nothing more. It is not necessary to pause and enquire for what reasons the legislature made this difference between suits and execution proceedings. It may be that it wanted to treat the decree-holder who has obtained a decree in his favour with more indulgence than a plaintiff who has not obtained a decree or it may be that there were other reasons. The remark of Wallis, C.J, in Muthiah Chettiar v. Govinddoss Krishnadoss that “the Code expressly provides by O. 22, R. 12, that nothing in Rr. 3, 4 and 8 of that order, which provide for abatements, shall apply to execution” shows that it was in the above-mentioned sense that the learned Judge also understood the meaning of the rule. In Monmotho Nath Mitter v. Rakhal Chandra Ternary Mukerjee, J., interpreted the rule in the same way as may be seen from his observations at page 399 where he discusses the very point now under consideration. In this connection, attention may also be drawn to the decision in Bhagwan Das v. Jugul Kishore where, after referring to R. 3 of O. 22, the learned Judges refer to R. 12 and observe that “R. 12 distinctly shows that this rule (R. 3) shall not apply to execution proceedings, i. e., that it is not compulsory upon a decree-holder to have the names of the heirs brought upon the record in that way, on penalty of his decree (execution application) abating.” Reilly and Ananthakrishna Ayyar, JJ., also express the same opinion in Upadrasta Venkatalakshmamma v. Garikipati Seshagiri Rao . For these reasons, with all deference to the learned Judges, I am not prepared to accept the interpretation put by them on Rr. 3 and 12 in Palaniappa Chettiar v. Valliammai Achi .
If, as I have said, nothing in R. 3 of O. 22 applies to execution proceedings, then the question whether the legal representative of a decree-holder can be substituted in the pending execution application and be allowed to proceed with that application or whether he should be compelled to file a fresh application should be considered in the light of the other provisions of the Code. If R. 3 of O. 22 does not apply, it is argued that there is no procedure provided in the Code for bringing on record the legal representative of a deceased decree-holder in execution proceedings. It is true that there is no specific machinery in the Code for that purpose, but does it necessarily follow from this, that the Code prohibits the legal representative from making an application to continue the pending petition after substituting his name in it? I think not. If R. 3 does not apply, then obviously there can be no objection for proceeding under Sect. 146 of the Code and O. 21, R. 16. Under Sect. 146 there being no other procedure provided, a legal representative of a decree-holder may make an application which may be made by the decree-holder and under O. 21, R. 16 where a decree is transferred by assignment or operation of law as happens in the case of the death of a decree-holder, the transferee may apply for the execution of the decree. Cases have held that where a decree-holder dies or transfers his decree pending the execution application filed by him, then the transferee decree-holder including his heir is entitled under O. 21, R. 16 to apply for continuing the pending execution application by substituting his name in it and that such an application is not to be considered as a fresh execution application.
In Akhoy Kumar Talukdar v. Surendra Lal Pal , it is stated that “on the death of the applicant for execution, it was open to the legal representatives of the deceased decree-holder to apply immediately for carrying on the proceedings in execution of the decree or to apply for a fresh execution under O. 21, R. 16, Civil Procedure Code. It was not necessary for them nor was it competent to make an application for substitution.”
In Baij Nath v. Ram Bharos , a decree for sale had been passed on 28th September 1912. Various applications for execution of the decree had been made. The fourth application for execution was made on 22nd October 1923. During the pendency of this application, the decree-holder, Ram Lal died and his sons applied on 28th April 1925 praying that they may be brought on record in the place of their father and the execution might be proceeded with. The question was whether this application was to be treated as a fresh application for execution in which case it would be time-barred under Sect. 48, Civil Procedure Code. The learned Judges held that the application was not a fresh application. The following observations in the judgment deal with the point:—
“When the sons of Ram Lal, on his death, made the application of the 28th of April, 1925, they did not ask for-any fresh proceedings. They said that Ram Lal's name might be removed and the petitioners” names might be entered in the array of decree-holders. They had to make an application in the usual form of ten columns, because there is no rule of law which enables the legal representative of a deceased decree-holder to apply for mere substitution of names. He must apply, whenever he does apply, for execution of the decree, Vide O. 21, R. 16, of the Code of Civil Procedure. It is clear, therefore, that neither the application of the 28th of January, 1925 nor the application of the 28th of April, 1925, was a fresh application within the meaning of Sect. 48 of the Code of Civil Procedure.”
Mr. Govindarajachari's only comment on this case is that the learned Judges, after stating the rule correctly that there is no machinery for substituting the name of a legal representative in a pending execution application, have illogically refused to apply the principle to the case before them. This is not so; for, what they say is that the legal representative cannot merely apply for the substitution of his name in a pending application but should file an application which must be an application for execution, under O. 21, R. 16 and by that application the pending execution may be continued after substitution of the name of the legal representative.
The above case was followed in Mirza Muhammad Sadiq Ali Khan v. Sajjad Mirza alias Munnay Agha . Referring to it, the learned Judges stated thus:
“It has been laid down in a Full Bench decision of the Allahahad High Court in Baij Nath v. Ram Bharos , that there is no rule under which the legal representative of a deceased decree-holder can or should apply merely for substitution of names. The application should be for execution we take the same view.”
No doubt, as pointed out by Mr. Govindarajachari, the question, whether the application was a fresh one or one merely to continue the pending application, was not very material in this case as, having regard to the dates, the plea of limitation under Sect. 48 of the Code of Civil Procedure could not have been raised with respect to it.
In Mussammat Gulab Kuer v. Syed Mohammed Zaffar Hussain Khan , a decree was passed on 3rd February 1908. An execution petition has been filed on 7th November 1918. The facts show that this petition was well within time During its pendency the decree-holder assigned his interest in the decree to his son and on 24th January 1920 the son applied for the substitution of his name in the place of his father. It was contended that, as this application for substitution was beyond the period of twelve years from 3rd February 1908, the application was barred by limitation under Sect. 48, Civil Procedure Code. The Court refused to treat the application in question as a fresh application for execution but held that the application should be considered to be one under O. 21, R. 16, Civil Procedure Code and that it was in substance an application in continuation of the proceedings then pending in the Court and that no question of limitation arose in the circumstances of the case. This decision was followed in Mussammat Bhagavanta Kuer v. Dewan Zawir Ahmad Khan , the learned Judge (Adami, J.), remarking about the petition in question that “when the petitions for substitution of the transferees were filed on June 7th, 1919, and were granted on June 14th there was no reason why execution should not have proceeded with the transferees substituted for the decree-holders; and there was no necessity to strike off the execution proceedings.”
I shall now refer to two decisions where the application of R. 12 of O. 22 arose in an appeal filed against an order in execution proceedings and not in the course of the execution proceeding itself as in the cases already examined: see Hakim Syed Muhammad Taki v. Rai Fateh Bahadur Singh* , it was held that, when the decree-holder, the appellant, died in the course of an appeal preferred against an order in execution, it was open to his legal representatives to continue the appeal and that O. 22, R. 12 read with Rr. 3 and 4 was no bar. In that case a preliminary objection was taken that, upon the death of the appellant, his legal representatives were not entitled to prosecute the appeal and in support of the objection reliance was placed upon O. 22, R. 12 of the Code. The objection was characterised as one “of a somewhat novel character and not worthy of serious consideration but for the insistence with which it was pressed.” After pointing out that even before the present Code, the Court held that the corresponding provisions of the old Code did not apply to execution proceedings and that Courts had power to bring legal representatives of deceased decree-holders in pending execution applications, the learned Judges observed that this practice cannot be considered to be negatived by R. 12 of O. 22. In Hakim Syed Muhammad Taki v. Rai Fateh Bahadur Singh* it was held, Das, J. dissenting, that by virtue of R. 12 of O. 22, Rr. 3 and 4 did not apply to appeals arising out of an order passed in the course of a proceeding in execution of a decree or order and that, therefore, such an appeal does not abate on the death of the respondent, if the appellant fails to apply and make the legal representative of the deceased respondent a party to the appeal within the time prescribed by law. The dissenting judgment of Das, J., was pressed before us by the respondent with great force, but I am inclined to accept the view of the majority of the Bench. It follows from these decisions that in appeals also the same view of R. 12 of O. 22 was accepted, as in the case of execution petitions. I have already drawn attention to Sundayee Ammal v. Krishnan Chetti where this Court refused to apply Palaniappa Chettiar v. Valliammai Achi to an appeal against an order in execution.
In view of the above decisions, I fail to see how the legal representative of a deceased decree-holder cannot be permitted to substitute his name in a pending execution application and proceed with it. It is said that, having regard to the definition of the term ‘decree-holder’ in the present Code which does not include any person to whom a decree or order is transferred as under the definition of the term under the old Code of 1882 the conclusion arrived at by the learned Judges in these cases is based upon the old notion of the term and is therefore open to objection; and that the transferee will not acquire the status of a decree-holder until after an order in execution is made in his favour. But I cannot see why that order cannot be made in the pending execution petition itself ordering execution to proceed just as in a fresh execution application. It appears to me that the change in the definition of the term ‘decree-holder’ does not really affect the question.
I shall now refer to two Privy Council decisions relied on by the petitioner in support of his contention, i.e, Kunwar Jang Bahadur v. Bank of Upper India Ltd., Lucknow and Kedarnath Goenka v. Anant Prasad Singh . These decisions do not directly bear on the point; but there are observations in them which would help the appellant. In Kunwar Jong Bahadur v. Bank of Upper India Ltd., Lucknow at page 550 their Lordships of the Privy Council observed that
“if the judgment-debtor dies before any such certificate is issued, the Court of transfer does not lose its jurisdiction over the execution proceedings, which does not abate by reason of the death. But before execution can proceed against the legal representative of the judgment-debtor, the decree-holder must get an order for substitution from the Court which passed the decree. This is a matter of procedure and not of jurisdiction.”
In this case, their Lordships were considering whether a Court to which a decree has been transferred had jurisdiction to bring on record the legal representative of a deceased judgment-debtor; and the certificate referred to in the extract quoted above refers to a certificate as regards satisfaction of the decree. From the statement of their Lordships it is clear that an execution proceeding does not abate by reason of the death of a judgment-debtor and that the decree-holder may proceed against him after getting an order for substitution from the Court which passed the decree and this is referred to as a matter of procedure. I think it follows fairly from these observations that it is not necessary that the decree-holder should resort to a fresh application for execution to proceed against the legal representative of the deceased judgment-debtor. It seems to me that the passage suggests that he may get the name of the legal representative substituted in the pending execution application itself which has not abated and may then proceed with that application for execution. The judgment of their Lordships in Kedarnath Goenka v. Anant Prasad Singh , the other Privy Council case, is very brief and does not contain the facts of the case. Their Lordships approve of the following passage in Das, J's judgment which they quote in their own judgment:
“I hold that, under the Code of 1882, a proceeding for the ascertainment of mesne profits was a proceeding in execution, that, as the decree, in the present case, was passed under the Code of 1882, such proceedings must be held in execution and not in the suit. That being so, O. 22, R. 12., applies and it must follow that substitution was not necessary.”
The facts of the case are these: The Subordinate Judge in 1905 made a decree for possession and mesne profits. Appeals to the High Court and to the Privy Council were dismissed, the latter in 1913 and inquiry as to the mesne profits recoverable was held subsequently and during it in 1918, two of the plaintiffs, Bhoop Narain Singh and Baijnath Singh, died. About two years after, the sons of Bhoop Narain Singh obtained an ex parte order to be substituted on the record for their father. The appellant then contended that the order of substitution should be cancelled and that the suit had abated as the legal representatives had not been brought on record within six months. The petitioner contends that this decision may be taken to be an authority for holding that the inquiry as to mesne profits being a proceeding in execution under the Code of 1882, O. 22, R. 12 applies to it, and that there is no abatement under O. 22, R. 3 and that therefore no substitution (of the legal representative) was necessary. Though it may not be quite clear as to what was exactly meant by “substitution was not necessary,” I think that on the authority of this decision, the petitioner may well contend that the legal representative is, at any rate, entitled to ask the Court to substitute his name in the pending petition and to proceed with the execution.
In the light of all the above decisions, I would hold that the legal representative of a decree-holder who died during the pendency of an execution petition filed by him can be substituted in his place in the execution petition and be allowed to continue it.
The petition by the legal representative being an application for the execution of the decree, the question may arise as to what article of the Limitation Act should be applied to such an application. The point is one of some difficulty; but it is not necessary to discuss it here as it does not arise in this case. However, I may observe that if there is difficulty in applying Art. 182 of the Limitation Act, then why should not such an application be treated as one governed by Art. 181? I think authority may be found in support of this position; (See Kalyani Pillai v. Thiruvenkadaswami Ayyangar , but I do not desire to express any definite opinion on the point, as it was only glanced at in the course of the arguments.
Under the old Code also some Courts in India had to consider whether the legal representative of a decree-holder or a judgment-debtor could be substituted in a pending execution petition and be allowed to continue the execution. Sects. 363, 364 and 366 of the Code of 1882 correspond to O. 22, R. 3 of the present Code. Sect. 368 corresponds to O. 22, R. 4. There was no section in the old Code corresponding to R 12 of O. 22.
The earliest case brought to our notice is the decision in Gulabdas v. Lakshman Narhar which related to the death of a decree-holder. In that case one Lakshman was allowed to continue the execution proceedings begun by his father. The actual decision turned on the question of limitation; but in dealing with it the learned Judges referred to Sect. 365 relating to the death of a sole plaintiff and observed that
“the Code of Civil Procedure does not provide that applications for execution shall, like suits, abate by the death of a judgment-creditor, nor have any cases been cited to us to show that the analogy of the sections applicable to pending suits governs pending proceedings in execution.”
It is worthy of notice that this opinion was expressed even though there was no rule in the old Code corresponding to R. 12. It was also contended in that case that the deceased decree-holder's sons could not come in as mere representatives to carry out his application but they were bound as representatives to make a new application on their own accord. This is precisely the very argument that is now put before us. The learned Judges did not decide the question as the objection was not taken before, but they observed that “it goes rather to the form than to the substance of their application.”
Though the point was not expressly decided, it is easy to see which way the inclination of the learned Judges lay. The next case, Govind Shanbhog v. Appaya , which was also a case of a deceased decree-holder does not throw much light on the matter. The same may be said about the case in Keshavlal Bechar v. Pitamberdas Tribhuvandas . In Purushottam v. Rajbai , which related to the death of a judgment-debtor during the pendency of an execution petition it was held “when execution proceedings are commenced against a judgment-debtor, they can be continued after his death by substituting the name of the legal representative in place of that of the deceased judgment-debtor in the application for execution. It is not necessary to file a fresh application under the provisions of Sect. 235 of the Code of Civil Procedure (O. 21, R. 11).” In the course of their judgment the learned Judges referred to a prior decision of their own Court, Hirachand Harjivandas v. Kasturchand Kasidas and said “Sects. 361 to 372, Civil Procedure Code, do not relate to proceedings in execution,” and further on observed that “no authority has been cited to us in support of the contention that execution proceedings already commenced cannot be continued after the death of the judgment-debtor by substitution of the name of the legal representative in place of that of the judgment-debtor in the application for execution. We think therefore that there is no objection to the continuance of the execution proceeding against the present respondent without fresh application under Sect. 235.” This decision may well be taken as an express authority for the position that in Bombay the same interpretation that is now sought to be put on O. 22, Rr. 3, 4 and 12 was definitely put on the corresponding sections of the Code of 1882 and that under that Code, an execution petition pending against a deceased judgment-debtor was allowed to be continued without filing a fresh application for that purpose.
In Madras, the question does not seem to have been dealt with explicitly in any decision under the old Code; but there is a decision in Appani Ayyangar v. Dharni Mudaly which has some bearing on the point. In that decision it was held by Benson and Muller, JJ., that an application by the legal representative of a decree-holder for an order recognising him as the decree-holder is not prohibited by the Code of Civil Procedure and consequently, such an application is a step-in-aid of execution within the meaning of Cl. 4, Art. 179 of the Limitation Act. If so, it would be unreasonable to call such an application a fresh application. This decision is really not opposed to the previous decision in Ramachandra Ayyar v. Subramania Chettiar in which it was held that a transferee decree-holder cannot apply merely for recognising him as transferee inasmuch as by force of the definition of the term ‘decree-holder’ he himself is a decree-holder; and it was for this reason that the learned Judge held in that case that a transferee decree-holder can only apply to execute the decree. In Madras as a matter of ‘practice’ the legal representative of a deceased decree-holder who dies pending an execution application filed by him has always been allowed prior to the decision in Palaniappa Chettiar v. Valliammai Achi to continue the pending petition by substituting his name without being put to the necessity of filing a fresh execution application.
No decisions of the other High Courts under the old Code of 1882 have been cited before us; but judging from the decisions of those Courts under the present Code, there is no reason to believe that under the old Code they followed a different procedure. On the whole I am inclined to think that the practice in Indian Courts was always to allow the legal representative of a deceased decree-holder to continue the pending execution petition filed by him by substituting his name in it in the place of the deceased decree-holder and then to proceed with the execution. I do not think his application to proceed with the execution petition was ever considered in the light of a fresh execution petition. If this view is correct, then the decision in Palaniappa Chettiar v. Volliammai Achi is in conflict with the well-established practice of this and other Courts.
That decision has also seriously affected the rights of the legal representative of a deceased decree-holder. The following extract from the judgment of Ananthakrishna Ayyar, J., in Upadrasta Venkatalakshmamma v. Garikipati Seshagiri Rao will make this point clear:—
“If the only remedy open to the legal representative of a deceased decree-holder in such a case be to file a fresh execution petition then fresh pleas of limitation might be open to the judgment-debtor, the intervening period affording him basis for such contention. Attachments which were effected pending the prior execution petition would prima facie no longer be available when a fresh execution petition is filed. The advantages which a decree-holder has as a result of his having filed execution petition, such as the right to share in the proceeds of auction sales held by the same Court after the filing of such execution petition might not be necessarily available to him on such fresh execution petition. Other disadvantages to the decree-holder's representative also could be readily imagined………”.
See also the remarks of Reilly, J.:—
Of course if the legislature has deliberately introduced a change in the existing procedure, then disastrous consequences notwithstanding, that procedure has to be followed; but I have endeavoured to show in this judgment that no such change has been introduced in the Code by the insertion of R. 12 in O. 22. If a change was intended, then having regard to the long continued practice in the Courts, the legislature would have expressed its intention in clearer and more explicit terms. In my opinion, R. 12 of O. 22, Civil Procedure Code, though it is a new provision introduced in the Code of 1908, did not in any way introduce a new rule of procedure but only gave,—in the words of Mukerjee, J., in Monmotho Nath Mitter v. Rakhal Chandra Tewary —“legislative sanction to the fairly well-established doctrine under the old Code that the provisions of the chapter relating to substitution upon the death, marriage or insolvency of parties, do not apply to proceedings in execution between the decree-holder and the judgment-debtor.” In this view, for the reasons mentioned above, I must express my respectful dissent from the decision in Palaniappa Chettiar v. Valliammai Achi . I would therefore set aside the order of the learned District Munsif and ask him to restore the petition to his file and proceed with it according to law. I make no order as to costs.
In conclusion, I must express my thanks to Mr. Govindarajachari who has argued the case ably as amicus curiae for the respondent.
Jackson, J.—I agree, and would also like to express my thanks to Mr. Govindarajachari. If nothing in Rr. 3, 4, 8 of O. 22 shall apply to proceedings in execution of a decree, then Rr. 3, 4, 8 have nothing whatsoever to do with execution proceedings. To evolve from Rr. 3, 4 and 12 a precept like the headnote to Palaniappa Chettiar v. Valliammai Achi “the legal representative of a decree-holder who died during the pendency of an execution petition filed by him cannot be substituted in his place in the execution petition and be allowed to continue it” is, in effect, to do precisely what R. 12 deprecates, and to apply Rr. 3 and 4 to execution proceedings, deriving from their’ silence, as it were, a fresh sub-clause to these rules, with a most curious result; for, read with this addition, R. 3 lays down that on the death of the decree-holder the execution proceedings shall never abate, but shall nevertheless always abate because no one can be substituted in his place.
It seems better therefore at the outset to treat O. 22 as having no application to execution proceedings, and then this question whether the legal representative can be brought on in the pending execution petition instead of being relegated to a fresh application would seem to present little difficulty. Under Sect. 146 a proceeding taken by a person may be taken by the person claiming under him, and if O. 22 has nothing to do with the matter, it does not provide otherwise. Then under O. 21, R. 16, a transferee by operation of law, an heir for instance, may apply for execution. As clearly set forth on page 617 of the 8th edition of Mr. Mulla's Civil Procedure Code, where a decree-holder applies for execution and pending execution assigns his interest in the decree an application by the transferee of the decree for substitution of his name is not a fresh application for execution but merely an application for continuing the execution proceedings then pending.
For this statement there is ample authority. “On the death of the applicant for execution it was open to the legal representatives of the deceased decree-holder to apply immediately for carrying on the proceedings in execution of the decree or to apply for fresh execution.” Akhoy Kumar Talukdar v. Surendra Lal Pal . “When the sons of Ram Lal on his death made the application they did not ask for any fresh proceedings………He must apply for execution of the decree………but it was not a “fresh application.” Baij Nath v. Ram Bharos . “We take the same view.” Mirza Muhamad Sadiq Ali Khan v. Sajjad Mirza alias Munney Agha . “There was no reason why the execution should not have proceeded with the transferees substituted for the decree-holders.” Mussammat Bhagavanta Kuer v. Dewan Zamir Ahmad Khan . In the light of these rulings Mr. Mulla pays an exaggerated compliment to our Court, by excising the above note from his 9th edition, and relegating Mussammat Bhagavanta Kuer v. Dewan Zamir Ahmad Khan to the realm of obsolete cases governed by the old Code. In the old Code the definition of decree-holder included a person to whom a decree is transferred. In the present Code, Sect. 2 (3) runs “decree-holder means any person in whose favour a decree has been passed or an order capable of execution has been made.” As observed by Mr. Mulla (page 661) the transferee may not acquire the status of a decree-holder until an order for execution is made in his favour, but that order can as well be, Let the pending execution proceed, as, Let a fresh execution begin.
Curgenven, J.—The case-law, most of which was not cited before us in Palaniappa Chettiar v. Valliammai Achi presents some curious features, but since there is no doubt that it is very preponderantly in favour of giving Courts the power now in question, to survey it is not within my present purpose. I wish only to say a word or two about the grounds of our decision in the case which has given rise to this Pull Bench.
Upon general principles of procedure, and apart from the specific provisions of the Code, there are two ways in which the legal representative of a deceased decree-holder may conceivably enforce the decree, either (a) by an original application to enforce it, or (b) by obtaining leave to continue an execution proceeding already begun by his predecessor.
Sect. 146 enacts that ‘save as otherwise provided’ where any proceeding may be taken by any person, then the proceeding may be taken by any person claiming under him. That in express terms provides that, unless a rule exists to the contrary, course (a) is open to the legal representative of a decree-holder. It says nothing about course (b) unless it be held that the one necessarily includes the other. Similarly, O. 21, R. 16, which enables a transferee to apply for the execution of a decree, does not expressly enable him to apply to continue a proceeding already pending when his predecessor died. If the Code provided elsewhere against such a course, the provision would not be in conflict with the terms of this rule. Turning now to suits, there can be no question, I think, that in the case of a suit the power of a Court to allow a legal representative to proceed with the suit is specifically derived from R. 3 of O. 22. Sub-R (1) says ‘the Court, on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party, and shall proceed with the suit.’ It may be true that this rule, besides giving the power, does other things, but it cannot seriously be argued that that circumstance makes it any the less an empowering rule. R. 12 of O. 22 says that nothing in this rule shall apply to execution proceedings. In the case of such proceedings, can we look elsewhere for the power? In Palaniappa Chettiar v. Valliammai Achi we answered No. If in one place in the Code, dealing specifically with the process of substituting a legal representative for the purpose of continuing a proceeding, the power is expressly given in the case of a suit, and as expressly withheld in the case of an execution proceeding, it is not permissible, we thought, to have recourse to a general provision, to be found elsewhere, which liberally construed, might in the absence of the more specific provisions afford the required power. It is, I still think, not an unreasonable inference that the terms of O. 22 qualify O. 21, R. 16. I observe that Reilly, J., who in Upadrasta Venkatalakshmamma v. Garikipati Seshagiri Rao has some hard words to say about our decision, appears to assume that the problem of construction would be unaffected if Rr. 3 and 4 of O. 22 had no existence. Such an alteration in the Code would of course remove the whole difficulty we felt in deciding Palaniappa Chettiar v. Valliammai Achi , which was created by the terms of those rules. Perhaps an illustration will make the point clearer. Suppose I am the proprietor of a theatre, and say to my manager, ‘subject to any rules I may make, you may order matters according to your discretion.’ I make a rule, ‘Men may smoke in the theatres; but this does not apply to boys under 16.’ If I find boys under 16 smoking and ask my manager for an explanation, should I be satisfied if he answered, ‘Your rule said that it did not apply to boys under 16, so as regards them I acted as though it had no existence, and fell back on my general discretionary powers’?
If the framers of the Code were willing to concede this most important power to executing Courts, it is a little surprising to me that they should have failed to provide an express rule, and should have left the Courts, in the words of Ananthakrishna Ayyar. J., ‘to mould its procedure according to the equities of the case’; and the legislature seems to have left the question of limitation to take care of itself, with results which, thanks probably to an erroneous view of the law, have not yet become fully apparent. I agree that if O. 21, R. 16 may be read as if it said; ‘the transferee may apply for execution of the decree, or for leave to continue a proceeding in execution pending at the date of the transfer,’ the question of the effect of R. 12 of O. 22 in debarring a transferee from continuing an execution petition would assume a different aspect: nor would I demur to reading it in this way, if O. 22 formed no part of the Code. I confess that, as matters stand, I still find a difficulty in extracting the required power from the terms of the Code. But since that power has been so universally exercised, and so generally assumed by the Courts to exist, I do not dissent from a construction which achieves the desired object.
I must add my own thanks to Mr. Govindarajachari for the great assistance which he has given us in this case.
N. R. R.