Madhya Pradesh High Court
Mahila Ramshri Bai (Deceased) Thr. Pro. ... vs Mahila Indra Bai on 23 September, 2021
Author: Deepak Kumar Agarwal
Bench: Deepak Kumar Agarwal
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THE HIGH COURT OF MADHYA PRADESH
M.P.No.3196/2021
(Mahila Ramshri Bai (deceased) through proposed LR's Sonu
Rajak Vs. State of M.P.)
Gwalior, Dated:-23.09.2021
Heard through hybrid system of physical/virtual hearing.
Mr. Anand Bhardwaj, learned counsel for the petitioner.
The present petition is preferred under Article 227 of the
Constitution of India, challenging the order dated 24.08.2021 in Case
No.44/2015 passed by 15th Additional District Judge, Gwalior.
It is submitted by learned counsel for the petitioner that
execution proceedings are pending before the Court of 15 th Additional
Disrict Judge, Gwalior. During pendency, decree holder Ramshri Bai
died on 04.12.2020. Ramshri Bai executed a will in favour of
petitioner-Sonu Rajak on 14.04.2005. The petitioner has filed an
application under Order 22 Rule 1(10) of CPC for impleading him as
a decree holder which was rejected by the impugned order. As per
proviso to Order 22 Rule 5 of CPC, it is a duty of Court to determine
whether the petitioner is a legal heir of the original decree holder or
not. In support of his contention, learned counsel for the petitioner has
placed reliance on the judgment of Supreme Court in the case of
Varadarajan Vs. Kanaka Valli & others, reported in (2020) 3
MPLJ.
In the case of Varadarajan (Supra), the Apex Court has held
thus:
"8. We may state that Order XXII of the Code is
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THE HIGH COURT OF MADHYA PRADESH
M.P.No.3196/2021
(Mahila Ramshri Bai (deceased) through proposed LR's Sonu
Rajak Vs. State of M.P.)
applicable to the pending proceedings in a suit. But the
conflicting claims of legal representatives can be decided in
execution proceedings in view of the principles of Rule 5 of
Order XXII. This Court in a judgment reported as V.
Uthirapathi vs. Ashrab & ors. held that 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 is not applicable to cases of death of the
decree-holder or the judgment-debtor in execution
proceedings. This Court held as under:-
"11. Order 22 Rule 12 of the Code of Civil
Procedure reads as follows:
"Order 22 Rule 12: Application of order to
proceedings.--Nothing in Rules 3, 4 and 8 shall
apply to proceedings in execution of a decree or
order."
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. In Venkatachalam Chetti vs. Ramaswami
Servai [ILR (1932) 55 Mad 352 : AIR 1932 Mad
73 (FB)] a Full Bench of the Madras High Court
has held that this rule enacts that the penalty of
abatement shall not attach to 2 (1998) 3 SCC 148
execution proceedings. Mulla's Commentary on
CPC [(Vol. 3) p. 2085 (15th Edn., 1997)] refers to
a large number of judgments of the High Courts
and says:
"Rule 12 engrafts an exemption which
provides that where a party to an
execution proceedings dies during its
pendency, provisions as to abatement
do not apply. The Rule is, therefore, for
the benefit of the decree-holder, for his
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THE HIGH COURT OF MADHYA PRADESH
M.P.No.3196/2021
(Mahila Ramshri Bai (deceased) through proposed LR's Sonu
Rajak Vs. State of M.P.)
heirs need not take steps for
substitution under Rule 2 but may
apply immediately or at any time while
the proceeding is pending, to carry on
the proceeding or they may file a fresh
execution application." (emphasis
supplied)
14. In our opinion, the above statement of law in
Mulla's Commentary on 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."
Issue notice to the respondents on payment of process fee by
RAD as well as by ordinary mode within seven working days. Notice be made returnable within four weeks.
In the meantime, further proceedings of Case No.44/2015 pending before the Court of 15th Additional District Judge, Gwalior shall remain stayed till the next date of hearing.
Certified copy as per rules.
(Deepak Kumar Agarwal) Judge bj/-
BARKHA JHA 2021.09.2 3 16:24:15 +05'30'