Delhi High Court
Smt. Thakuri Bai (Through L.Rs.) vs Laxmi Chand And Others on 28 November, 1989
Equivalent citations: AIR1990DELHI21, AIR 1990 DELHI 217
ORDER
1. By this petition under Art. 227 of the Constitution of India, the petitioners have challenged two orders made by the Executing Court dt.21st of Nov. 1987 and 24th of Jan. 1989, hereinafter referred to as the first and the second impugned orders respectively.
2. By the first impugned order, the Court held that the execution proceedings instituted by Decree-Holder Thakuri Bai had abated as no application had been made till then by the legal representatives after her death on 8th Dec. 1986. By the second impugned order, the Court dismissed an application filed by the petitioners to set aside the first impugned order and to allow them to be brought on record as legal representatives of the deceased decree-holder and to continue the execution proceedings.
3. The petitioners claim to be legal representatives of Thakuri Bai by virtue of a registered Will dt.2nd of June 1981. They claim that the interest of Thakuri Bai in respect of shop No. 122, Khanna Market, Lodi Colony, New Delhi, and a decree obtained by her for possession and mesne profits in respect of the said shop against Laxmi Chand, respondent No. 1, devolved upon them on the death of Thakuri Bai on 8th of Dec. 1986 and that they are entitled to continue the execution proceedings after her death.
4. According to the petitioners, Bisan Das, the pre-deceased husband of Thakuri Bai, was an allottee of the said shop. Initially, Bisan Das employed Laxmi Chand to look after the business carried on by him at the said shop. Later, he took Laxmi Chand as his partner. The partnership was eventually dissolved. But, Laxmi Chand did not hand over possession of the shop to Bisan Das.
5. Laxmi Chand set up a claim for possession as a tenant and made an application under S. 9 of the Delhi Rent Control Act, 1958 for fixing standard rent of the shop. Bisan Das contested this application. He died during the pendency of these proceedings and his widow Thakuri Bai was brought on record as his legal representative. The Rent Controller held that there was no relationship of landlord and tenant between the parties.
6.Thereafter, Thakuri Bai filed a suit for recovery of possession of the said shop and mesne profits against Laxmi Chand, hereinafter referred to as the first suit. The Civil Court held that Laxmi Chand was not a tenant, that he was an unauthorised occupant, and passed a decree for possession of the said shop as also for recovery of mesne profits. Thakuri Bai filed another suit for recovery of mesne profits for the subsequent period, hereinafter referred to as the second suit. Appeals preferred by Laxmi Chand from the decrees passed in the first and the second suit were dismissed in due course.
7. In April 1982, after dismissal of the first appeal against the decree passed in the first suit, Thakuri Bai filed an application for execution of the decree against Laxmi Chand. This application was numbered as Execution Case No. 26 of 1982. Laxmi Chand, however, preferred a second appeal to this Court and thereafter a Special Leave Petition to the Supreme Court for setting aside the decree, but in vain. Thus, Laxmi Chand finally lost the battle by the dismissal of his Special Leave Petition on 14th of Dec. 1984. Then, in Jan.1985, his son Krishan Kumar filed objections in the execution proceedings, on the ground, inter alia, that a firm M/s. Krishna Brothers, respondent No. 2, in which he is a partner, is in occupation of the said shop as an independent tenant. Before these objections could be disposed of, Thakuri Bai dies on 8th of Dec. 1986.
8. The first impugned order was made on 21st of Nov. 1987 on an application filed by the objector, respondent No. 2. In this application, it was alleged that no application had been moved by the legal representatives of the deceased decree-holder despite the lapse of more than eight months and it was prayed that the proceedings "be dropped being abated". The General Attorney of Thakuri Bai, who had been prosecuting the case during her lifetime, filed a reply to this application. He took up a position: "there is no need to bring the legal representatives/ legal heirs on record in the execution case" On this application, the Court held that the General Attorney of the deceased decree-holder had no authority to continue the proceedings and "her LRs only have the authority to proceed with the present petition". The Court observed: "In my view the proceedings have thus abated. Any how, if any legal representative of the deceased DH comes forward he/she shall have her/his rights as per provisions of law". Consequently, the Court "dismissed" the execution proceedings "as abated".
9. Thereafter, on 10th of Dec. 1987, the petitioners moved an application with a prayer to set aside the first impugned order and to take them on record as legal representatives of the deceased decree-holder. The petitioners, somehow, invoked "the provisions of Order XXII, Rule 9 and Order XXII, Rule 4A read with Section 151, C.P.C." It must be mentioned at the outset that this application was not so well drafted as one would like it to be. Nevertheless, it was averred in it that the petitioners, whose names and particulars were mentioned in the application, were the "only legal heirs of deceased "Thakuri Bai" and that the proceedings in execution cannot abate. It was also pleaded, perhaps, under an erroneous belief that the provisions made under R. 4 of 0. XXII, Civil P. C. hereinafter referred to as CPC, was applicable, and "that the applicants have received the knowledge on 22nd Nov. 1987 and application is within time". This application has been dismissed by the second impugned order on the ground that it is "not maintainable". Further, fault has been found with the application for three reasons. First, that the applicants have not indicated the details to explain how they came to know of the execution proceedings. Secondly, that it has not been shown how "cause of action survives in their favor". Thirdly, that the application "has also not been filed within the period of limitation".
10. Mr. Ravinder Sethi, learned counsel for the petitioners, has contended that proceedings in execution of a decree cannot abate and both the impugned orders are, therefore, without jurisdiction and the same should be set aside.
11.There is considerable force in the proposition urged by Mr. Sethi. Generally, where any proceeding is taken or application made by a person, then the proceeding can be continued by any person claiming under him. This general rule is enacted in S. 146, CPC. This rule is subject to any provision otherwise made by the CPC or by any other law. Provision has been made in O. 22, Rr. 3,4 and 8, CPC, for abatement of proceedings in a suit in the circumstances envisaged in those rules. These provisions, however, do not apply to proceedings in execution of a decree. This doctrine has been given legislative sanction by an express provision made in R. 12 in these words: "nothing in Rules 3, 4 and 8 shall apply to proceedings in execution of a decree or order". This, however, does not imply that legal representatives of a deceased decree-holder should not be brought on record nor that proceedings in execution could continue despite the death of a decree-holder without any representation of the estate on record. Legal representatives of the deceased decree-holder should, no doubt, come on record to continue the proceedings but the penalty imposed on the legal representatives of the deceased plaintiff under R. 3, namely, that the suit shall abate where no application is made within the time limited by law for this purpose, does not apply to proceedings in execution by virtue of the said R. 12. A fortiori the bar of limitation cannot be invoked in respect of an application for bringing on record legal representatives of a deceased decree-holder in proceedings in execution of a decree. See: Venkatachalam Chetti v. Ramaswamy Servai AIR 1932 Mad 73 (FB); Evuru Venkata Subbayya v. Srishti Veerayya Gopal Chandra Naskar v. Hiranya Prova Moulock Budh Singh v. 8th Additional District Judge, Meerut .
12. It is obvious, on a perusal of the first impugned order, that the Court laboured under the erroneous impression that the proceedings before it "abated" because the legal representatives of the deceased decree -holder had not come forward till then to continue the proceedings. It must, however, be mentioned that the Court was right in holding that the erstwhile attorney of the decree-holder had no authority to continue the proceedings after her death. Since no one had come forward up to that stage to be substituted in place of the deceased decree -holder, it would have been appropriate for the Court to dispose of the proceeding as in fructuous inasmuch as it would have been not fruitful to proceed further unless someone came forward as a legal representative of the deceased decree-holder. But, this is not what the Court did. Instead, it proceeded to dismiss the proceedings in execution under the mistaken belief that the same had abated. The Court had no jurisdiction to do so.
13. The second impugned order also suffers from the same vice. On this occasion, the Court dismissed the application of the petitioners to set aside the earlier order and to permit them to be brought on record to continue the execution proceedings. The Court found this application to be "not maintainable" because the petitioners did not plead that cause of action survives in their favor-nor did they indicate "details" to show how they came to know of the execution proceedings, and, also because the Court felt that the application was barred by "limitation". These reasons and the conclusion stated in the second impugned order show that the Court was under the erroneous impression that since the execution proceedings had abated, the applicants ought to have satisfied the requirements of the provision made in Rule 3, namely, to show that the right to sue survives and that the application was made within the time limited by law. The requirement of pleading of particulars or details to show how the applicants came to know of the execution proceedings would be relevant and would arise only where the application is made beyond the time limited by law and to explain sufficient cause for it to be entertained. None of these matters was relevant or germane to decide an application by persons claiming a right to continue execution proceedings as the legal representatives of a deceased decree-holder inasmuch as nothing in R. 3 shall apply to proceedings in an execution of a decree by virtue of R. 12 of O. 22, CPC. The said three tests required to be fulfillled under R. 3 are not applicable to the present case for the purposes of testing maintainability of the application filed by the petitioners to set aside the earlier order of abatement and/or to bring them on record as legal representatives of the deceased decree-holder in the execution proceedings.
14. It is, no doubt, true that the petitioners had invoked the provisions of O. 22, R. 9 in the caption of their application and R. 9 could be invoked only where the proceedings are dismissed under R. 3. The wrong label on the petitioners' application could neither vest nor divest the Court of its jurisdiction nor can that be set up in defense to justify the second impugned order made by the Court on the erroneous impression that the provisions made in R. 3 are applicable to execution proceedings. Mention of a wrong rule in the caption of the application cannot validate the second impugned order especially when it is an order made on the basis of misconception of the jurisdiction of the Court in proceedings in execution of a decree. Therefore, the second impugned order is also bad.
15. Mr. Rishi Kesh, the learned counsel for the respondents, confronted with the unexceptionable position in law, has contended that this Court should not exercise its discretion under Art. 227 of the Constitution of India in the present case because: (1) both of the impugned orders, according to him, are appealable under O. 43, R. 1 (k),or (ja), (2) the petitioners are guilty of delay and laches and that the present petition is meant only to harass the respondents; (3) the petitioners' claim as legal representatives of the deceased decree-holder has not been properly pleaded in their application, the particulars stated in their rejoinder for the first time could not be answered by the respondents for want of opportunity to do so before the Executing Court; and (4) that the Court has not decided the question whether the petitioners have a right to continue the proceedings as legal representatives of the deceased decree-holder as claimed by them.
16. With regard to the first objection, Mr. Rishi Kesh has argued that the first impugned order was made under O. 22, R. 9(l) and it was appealable under 0. 43, R. 1 (k); or in the alternative, it was made in the exercise of power under O. 21, R. 105(2) and was appealable under 0. 43, R. 1 (ja); and that the second impugned order was made under 0. 22, R. 9(2) and it was certainly appealable under 0. 43, R. I (k), CPC. Order 21, R. 105 regulates the hearing of the application in proceedings in execution of decrees and orders. The relevant portion of the rule reads as follows:--
"105. Hearing of application--
(1) x x x x x (2) Where on the day fixed or on any other day to which the hearing may be adjourned the applicant does not appear when the case is called on for hearing, the Court may make an order that the application be dismissed.
(3) x x x x x Explanation- x x x x "
A bare reading of this provision shows that it caters to situations where one of the other party does not appear on a day fixed for the hearing of the application. This rule does not apply in case of death of a party. Reliance upon this rule and the provision made in clause (ja) of O. 43(l) for an appeal against an order made under it, is clearly misplaced. Likewise, the plea that the first impugned order has been made under sub-rule (1) of R. 9 is misconceived. This provision has been made to prohibit the filing of a fresh suit on the same cause of action where a suit abates or is dismissed under O. 22. The abatement or dismissal of the suit is not envisaged under this Rule so as to make it appealable under O. 43, R. 1 (k). A suit abates or is dismissed under Rule 3, Rule 4 or Rule 8 of O. 22 and not under R. 9(1). The appeal under clause (k) of R. 1 under O. 43 is contemplated against an order refusing to set aside the dismissal or abatement of the suit. The first impugned order dismissed the execution proceedings. It is not an order refusing to set aside the dismissal or abatement from which an appeal could lie under clause (k) of R. 1 of O. 43, CPC. The objection in respect of the second impugned order also cannot be sustained because proceedings in execution of a decree do not abate. It cannot, therefore, be said that the second impugned order was made under' R. 9 of 0. 22 refusing to set aside abatement of the proceedings. As such, clause (k) of R. I of 0. 43, CPC does not stand in the way of a challenge to the second impugned order also on the ground that it has been made without jurisdiction.
17. Next, Mr. Rishi Kesh has contended that the conduct of the petitioners is blameworthy and that they have been negligent in pursuing their remedy in accordance with law. He has pointed out that father of the petitioners was the decree-holders' attorney, he was prosecuting the matter on behalf of the decree-holder during her lifetime, he opposed the respondents' application for disposal of the execution proceedings, and that he ought to have taken suitable steps within reasonable time to bring on record legal representatives of the deceased. Further, he has urged that the first impugned order was made on 21st of Nov. 1987 whereas the petitioners made an application for its certified copy on 3rd of Mar. 1989, got it on 22nd of May 1989; and that the second impugned order was made on 24th of Jan., 1989, the petitioners applied for certified copy on 27th of Jan., 1989 and the copy was ready on 9th of Feb,1989; whereas the present petition was filed only on 3rd of July 1989. He has relied upon Kishan Swarup v. Mst. Kishan Dei 1972 Ren CR 417 (Delhi), to contend that the present petition, having been filed 90 days after the second impugned order was made, should be dismissed on the ground of delay and laches.
18. On the other hand, Mr. Sethi has explained that the petitioners are claiming a right to continue the proceedings on the basis of a registered Will, that the probate proceedings are still pending before the District Judge, that the mere fact that the father of the petitioners was the attorney of the deceased decree-holder and that he was prosecuting the case on her behalf during her lifetime, or his failure to take steps to bring on record the petitioners as legal representatives of the deceased, are of no consequence as execution proceedings cannot abate and there is no limitation prescribed for an application for bringing on record the legal representatives in execution proceedings. He has further submitted that the question of delay in filing the petition has to be considered in the present case on facts and circumstances of the case, and that the requirement to file such a petition within 90 days is merely a rule of practice for guidance of the Court and is not a binding rule of limitation prescribed by law. He has explained that the petitioners were required by the counsel to get a certified copy of the first impugned order also in order to raise an effective challenge to both the orders in this petition as a result of which the petition could be filed only in July 1981; that the delay, if any, in filing the petition has not caused any prejudice to the respondents; and in the facts and circumstances of the present case it cannot be said that the petitioners are guilty of delay and laches so as to disentitle them from the reliefs sought by the present petition.
19. The fact that the decree-holder, during her lifetime, was represented by the father of the petitioners as her attorney cannot be held against the petitioners nor is the delay in the petitioners making the application to be brought on record of any consequence inasmuch as there is no limitation prescribed for such an application in execution proceedings and such proceedings do not abate. Mr. Sethi has also satisfactorily explained the circumstances in which time was taken in filing the present petition after the second impugned order was made on 24th of Jan., 1989. The petitioners applied for a certified copy on 24th of Jan., 1989 and the copy was ready on 9th of Feb., 1989. It was quite reasonable for the counsel for the petitioners to advise them to challenge not only the second impugned order but also the first one and, therefore, to require the petitioners to obtain a certified copy of the first impugned order as well. This really explains the reason why the application for certified copy of the first impugned order was made on 3rd of Mar., 1989. It was ready on 22nd of Mar., 1989. Just a couple of days later, this Court closed for summer vacations and re-opened on 3rd of July 1989. The petition was filed on that very day. It cannot be said, on these facts, that the filing of the present petition was unduly delayed.
20. In the case of Kishan Swarup (1972 Ren CR 417) (Delhi) (supra), V. D. Misra, J. laid down the principle in para 5 of the judgment as follows:- -
"Under Art. 227 of the Constitution, the High Court exercises its supervisory jurisdiction over the Tribunals. Exercise of these powers is discretionary and the purport is to see that the Tribunals function within the limits of their authority. A person, who approaches the High Court for the exercise of these powers, has to act diligently and should not be guilty of delay. It is neither possible nor proper to lay down the maximum period during which a person should invoke this discretionary jurisdiction since it will depend on the facts of each case. Since this jurisdiction has been in one sense equated with the revisional jurisdiction of this Court under the Civil P.C. the limitation of 90 days provided for the revision can be a fair guide about the time during which a person should normally invoke, the supervisory jurisdiction."
21. In Chandra Bhushan v. The Deputy Director of Consolidation, Uttar Pradesh (Regional) Lucknow , Shah, J. speaking for a Constitution Bench of the Supreme Court, pointed out: "A rule of practice cannot prescribe a binding rule of limitation; it may only indicate how discretion will be exercised by the Court in determining whether having regard to the circumstances of the case, the applicant has been guilty of laches or undue delay".
22. In Deota v.Phagu (1969) 71 Pun LR (Delhi Section) 244, V. S. Deshpande, J. pointed out that jurisdiction under Art. 227 of the Constitution of India can be exercised by this Court suo motu and that this power and duty of superintendence and control can be exercised even though an appeal was barred by time.
23. In Walaiti Ram Seth v. Siri Krishan Kapoor , Rangarajan, J. said: "It is a settled law that the ambit of the power under Art. 227 is so wide as to permit interference in cases where the ends of justice do require such a course, even in cases where an appeal lay but was not filed, or an appeal had become barred by time".
24. So far as the objection on the ground of laches is concerned, the respondents have neither pleaded nor shown any prejudice caused to them by the alleged time lag. In P. R. Raghavan Nair v. The State AIR 1956 Trav-Co 77, Menon, J. referred to Ferris, Extraordinary Legal Remedies, and pointed out that a time lag that can be explained does not spell laches. "Laches" is "such negligence or omission to assert a right as, taken in conjunction with the lapse of time, more or less great, and other circumstances causing prejudice to an adverse party, operates as a bar in a Court of equity".
25. In view of these well settled principles and since it has been found that the Executing Court has acted without jurisdiction and on a misconception of the question of abatement of proceedings in execution of a decree in making in two impugned orders, as also in the facts and circumstances of the present case, it cannot be said that the petitioners are guilty of delay or laches in approaching this Court for relief under Art. 227 of the Constitution of India.
26. Lastly, with regard to the petitioners' prayer to be brought on record as legal representatives of the deceased decree-holder, as observed earlier, their application is not quite happily drafted. The application barely serves the purpose of an information that the petitioners claim to be the only legal representatives of the deceased decree-holder. The facts and particulars on which this claim is based have been stated in their rejoinder. Mr. Sethi, learned counsel for the petitioners, has rightly argued that the respondents could have sought leave of the Court to controvert the fresh facts pleaded in the rejoinder, if they felt that it was necessary to do so. In any event, the Court has not gone into the entitlement of the petitioners to be brought on record as legal representatives of the deceased decree-holder and to continue the proceedings in execution of the decree. Since execution proceedings do not abate and there is no limitation prescribed for legal representatives to make an application to be brought on record to continue such proceedings, it would be in the interests of justice to give an opportunity to the petitioners to make a fresh application, stating proper particulars, to be brought on record as legal representatives of deceased decree-holder and to be permitted to continue the execution proceedings; to give to the respondent also a proper opportunity to challenge and controvert the claim of the petitioners; and to require the Court to decide the matter in accordance with law.
27. As a result, the first impugned order dt.21st of Nov., 1987, to the extent that it is dismissed the execution proceedings on the ground that the same had abated, and the second impugned order dt. 24th of Jan., 1989 are set aside; the execution proceedings are hereby restored; an option is given to the petitioners with leave and liberty to make a fresh application to be brought on record as legal representatives of the deceased decree-holder Thakuri Bai; and the Executing Court is hereby directed to decide the question whether the petitioners are entitled to be brought on record and to continue the execution proceedings as the legal representatives of the deceased decree-holder in accordance with law.
28. The parties are directed to appear before the Executing Court on 14th of December, 1989 for further proceedings in Execution Case No. 26 of 1982.
29. This petition is accordingly allowed. No costs.
30. Petition allowed.