Civil Revision Application No.21 of 2014

3rd February, 2014

Petitioner Counsel: Mr. L.V. SANGIT
Respondent Counsel: Mr. GIRISH RANE

Cases Cited:
V. Uthirapathi Vs. Ashrab Ali and Ors., AIR 1998 SC 1168 [Para 5]

JUDGMENT

JUDGMENT :- 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, Chalisgaon, District Jalgaon in Regular Darkhast No. 59/1986.

2. 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.

3. 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.

4. 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 their capacity of legal heirs of her husband Sonusing Patil.

5. The learned counsel for respondents has referred the 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 Mulla's Commentary on the CPC, 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.

15. It is clear, therefore, that if after the filing 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."

6. 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.

7. 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 debtors in executions is still agricultural land.

8. The learned counsel for the petitioners submits that 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.

9. 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.

10. There is no substance in this revision. The same is rejected.

Application dismissed.