1. Pending this appeal, respondent 1 Baliram died on 17th November 1936 and respondent 2 Potey died on 26th November 1936. The appellant filed his application for bringing their respective legal representatives on the record on 6th April 1937. That application was manifestly barred by time, if it is regarded as one made under O. 22, R. 4 of the CPC, i.e for substitution of the names of the legal representatives. It is however within time as one made for setting aside abatement of the appeal. The reason given for the failure to apply within the period of limitation is that the appellant learnt about the respondents' death “on or before 1st March 1937 as he was busy for two or three months in election work” and that the appellant's servants could not get the correct information as to who were the legal representatives. We cannot accept this explanation for delay. The affidavit which has been filed to verify the allegations is not made by the appellant himself as he ought to have done but by his agent. The statement that he came to know about the death on or before 1st March 1937 is equivocal and vague. The affidavit filed by the legal representatives of respondent 2 leaves but little room for doubt that the appellant had full knowledge of respondent 2's death within the time prescribed by law for making the requisite application. That the appellant was engaged in the election activities is not sufficient to account for his ignorance of the respondent's death. Moreover, the election was over on 12th February 1937 and he had still three days time to apply for substitution of respondent 1's and 12 days time for that of respondent 2's legal representatives. It must be held that the appellant has been unable to show sufficient cause for his failure to apply within the time prescribed by law.
2. It is next contended that the appellant was not bound to apply for making the legal representatives of the deceased respondents parties to the appeal within three months.
3. This contention is based on the assumption that R. 12 of O. 22 of the CPC, exempts the appellant from making such an application. It is true that this appeal arises out of execution proceedings but the question is whether R. 12 applies to appeals from orders made in execution proceedings. On this point there is a conflict of judicial opinion. The Lahore and Patna High Courts have held that R. 12 has the effect of excluding from the operation of Rr. 3, 4 and 8 of O. 22 of the CPC, appeals arising from execution proceedings and that there can be no abatement of such appeals. In AIR 1925 Nag 2391 Kinkhede A.J.C was inclined to the same view. On the other hand, the Madras High Court has held that an appeal against an order in execution is not a proceeding in execution of a decree and that R. 12 does not apply to such appeals to save them from abatement. The view of the Allahabad High Court also is similar to that of the Madras High Court. Examining the authorities it would appear that in 74 IC 5772 and AIR 1925 Nag 239, the learned Judges gave no reasons in support of their opinions. In 9 Pat 3723 the question was considered by a Full Bench and the majority of Judges decided that an appeal against an order made in execution proceedings did not abate in view of R. 12, O. 22. Das, J. dissented and held otherwise. The Lahore and Patna cases were considered by the Madras High Court in 55 Mad 10064 and it was held that an appeal from an order made in execution proceedings was not an execution proceeding and that it was governed by R. 11 and not by R. 12. In 55 All 5095 this view was accepted as being correct.
4. The cardinal question is whether an appeal from an order in execution proceedings stands on a footing different from other classes of appeals. O. 41 of the CPC, which provides the procedure relating to appeals, does not make any distinction between appeals arising from execution proceedings and those preferred against decrees. There is therefore no reason why R. 11 of O. 22, should not apply to an appeal falling under Section 47 of the CPC, as the present appeal does.
5. An appeal which arises from execution proceedings cannot be regarded as a “proceeding in execution”. Section 50 of the CPC, provides that where a judgment-debtor dies before the decree has been fully satisfied the holder of the decree may apply to the Court which passed it to execute the decree against the legal representative of the deceased. It is because of this special provision that R. 12 of O. 22 excludes the execution proceedings from the operation of Rr. 3, 4 and 8 of that Order. R. 12 must therefore be construed as referring only to the proceedings in the executing Court and not to those in the Appellate Court which hears appeals arising from execution proceedings. It cannot be overlooked that the Code of Civil Procedure itself makes a clear cut distinction between the execution proceedings and appeals. As regards execution proceedings it lays down the procedure in Part 2 and O. 21 and as regards appeals in Part 7 and Orders 41, 42, 43, 44 and 45. There is nothing in the Code to show that the Legislature intended to make any distinction between appeals from decrees in suits and appealable orders passed in execution. Both these classes of appeals are governed by the provisions of O. 41. In 9 Pat 372 Kulwant Sahay, J. was of opinion that the words “proceedings in execution of a decree or order” in R. 12 of O. 22 of the CPC, included proceedings in appeal against orders passed in the execution proceedings. It must therefore be seen whether the wider meaning is borne out by the relevant provisions in the Code of Civil Procedure. R. 12 of O. 22 contains a negative provision excluding the execution proceedings from the operation of Rr. 3, 4 and 8 of that Order. The positive provision is contained in Section 50 of the CPC. Does this Section apply to appeals? It does not say so. Does it apply by necessary implication? The answer is to be sought in the scheme of the Code of Civil Procedure relating procedure in suits and miscellaneous proceedings or powers of the original and the Appellate Court. The Code of Civil Procedure makes specific provision in regard to the former in S. 141 and S. 107(2) in regard to the latter. Similarly Rules 3, 4 and 8 of O. 22 do not apply proprio vigore to appeals but by virtue of R. 11, of that Order. Is there any such specific provision in the Code to extend the operation of Section 50 of the CPC, to appeals arising from execution proceedings? There is none. The conclusion is therefore inevitable that Section 50 of the CPC, does not apply to appeals arising from execution proceedings but only to those in the original Court and that R. 12 of O. 22 only excludes the proceedings in the original Court. The view taken by Kulwant Sahay, J. that R. 11 is controlled by R. 12, is, with due respect, open to question and cannot be accepted as sound.
6. There is further an important feature which distinguishes the execution proceedings in the original Court from the appeals arising out of them. While there can be succession of applications for execution, there can be but one appeal. Kulwant Sahay, J. concedes that there is this difference and that an appeal can be filed but once. The learned Judge however endeavours to overcome the difficulty by permitting the legal representatives of a deceased appellant to apply for leave to prosecute the appeal any time within three years under the residuary Article 181, Limitation Act. The answer to this is obviously the one which Das, J. gave, viz. that when the Legislature has provided a special procedure for obtaining such leave, it is not open to a litigant to have recourse to another procedure not provided in the Code.
7. The majority of the learned Judges in 9 Pat 372 were of opinion that an appeal against an order in execution proceeding is itself a continuation of the execution proceedings; it may or may not be so, but the crucial question, as pointed out in 55 Mad 1006, is whether such an appeal is a proceeding in execution within the meaning of O. 22, R. 12. It has already been shown above that the proceeding which Rule 12 contemplates is that specified in Section 50 of the CPC, which does not apply to appeals but only to a proceeding in the original Court. The application is dismissed with costs. Pleader's fees Rs. 25.
R.M/R.K
8. Application dismissed.