Andhra HC (Pre-Telangana)
Arif Abdul Ghani And Ors. vs Shaik Chand And Ors. on 9 April, 1998
Equivalent citations: 1998(3)ALD469, 1998(3)ALT414, 1999 A I H C 831, (1998) 1 LS 637, (1998) 3 ANDHLD 469, (1998) 3 ANDH LT 414, (1998) 2 APLJ 269, (1999) 1 CIVLJ 913
Author: V. Rajagopala Reddy
Bench: V. Rajagopala Reddy
ORDER
1. The short question that arises in this case is whether the period of Limitation prescribed by Order 22 Rule 3 to bring on record the L.Rs. of a claimant in an application filed under Order 21 Rule 97, 98 and 101 CPC read with Section 47 of CPC is applicable of not ? The question arises on the following facts.
2. The petitioner-decree holder, in execution of a decree obtained in the suit for specific performance and recovery of possession, got the sale deed executed through the Court and also obtained possession of the property on 9-12-1988. At that stage, the father of the respondents filed a claim petition E.A.34/89 under Order 21 Rule 97, 98 and 101 read with Section 47 of CPC. Pending the same it appeared he passed away on 3-6-1990 but no steps had been taken by the L.Rs./respondents to be brought on record, hence E.A. had been dismissed. After a considerable delay, they thought of coming on record. They had chosen to file E.A. 119/93 under Sections of the Limitation Act, to condone the inordinate delay of 959 days in filing the application to bring them on record. The petition was promptly dismissed on 13-3-96, the Court having found that there was no sufficient cause for condoning the delay. Respondents having chosen not to question the order, the order had become final. Surprisingly, now the present E.A.No.95/96 was filed by respondents to bring them on record under Order 22 Rule 3 CPC without seeking to condone delay and it was allowed by an order dated 12-8-1996. This order is challenged in this Civil Revision Petition. The point that was raised by the respondents before the Court below was that it was not necessary under law to file any application to condone the delay in view of Order 22 Rule 12 CPC as it specifies that the bar under Order 22 Rule 3 to substitute the L.Rs. within the period of Limitation was not applicable for execution petitions. Accepting the above stand the Court had chosen to allow the application.
3. Forceful arguments were advanced before me by both the Counsel. It is contended by the learned Counsel for the petitioner that the application filed by the deceased/claimant under Order 21 Rule 97, 98 and 101 of CPC being in the nature of a suit and not a proceeding in execution taken by the decree holder the limitation prescribed under Order 22 Rule 3 is squarely applicable and the application should have been filed within the period of limitation of 90 days. It is therefore argued that the Court below has committed a serious error in holding that Order 22 Rule 3 has no application to the application filed by the respondents. Learned Counsel for respondents, however, contended that as the present application arises during the execution of the decree by reason of Order 22 Rule 12 the period of limitation prescribed under Order 22 Rule 3 had no application and hence the application was rightly allowed by the Court below.
4. The only point that falls for consideration is whether the present application filed is an application in execution of a decree or not. If the answer is yes, then the petition is maintainable as the respondents are not bound by any period of limitation prescribed by Order 22 Rule 3 of the Code. To consider this aspect, it is necessary to look into the relevant legal provisions. Order 22 Rule 1 relates to abatement of suit by death of the plaintiff or the defendant Order 22 Rule 3 speaks of the procedure to bring the L.Rs. on record of the deceased plaintiff On the death of the plaintiff., if the right to suit survives the legal representatives of the deceased plaintiff are entitled to come on record and proceed with the suit. However, a period of limitation was incorporated by the said provision, by which the application should be filed within the time limited by law, otherwise the suit abates. It is not in dispute that period of limitation is 90 days under Section 120 of Indian Limitation Act. However, Rule 12 of Order 22 of the Code says that Rule 3 has no application to the proceedings in execution of a decree or order. It is therefore sought to be contended, if a plaintiff dies pending execution of the decree the L.R. of the decree-holder could be substituted, no period of limitation is applicable. An application can be filed by the L.Rs. of the applicant at any time. The stand of the respondents is therefore that the death occurred during the execution of the decree and they are entitled to be substituted. This point is no longer 'res integra'. This Court in Kantheti Damodara Gupta v. Koppineni Venkateswara Rao, 1979 (1) ALT 372 held, relying upon a Full Bench decision of the Madras High Court in Venkatachalam v. Rama Swamy, AIR 1932 Mad. 73 that Article 120 of the Limitation Act providing a period of 90 days, applies only to the applications that have to be filed and in the case of suits and not to execution petitions as Rule 12 of Order 22 CPC expressly provides that in Rule 3 or Order 22 shall apply to execution. The Court held as follows:
"Order 22 Rule 12 CPC provides that nothing in Rules 3, 4 and 8 shall apply to proceedings in execution of a decree or order. It was held by a Full Bench of the Madras High Court in Venkatachalam v. Rama Swamy, AIR 1932 Madras 73, that condition imposed on the legal representatives of a deceased-plaintiff to be brought on record within the time allowed by law docs not attach to execution proceedings. In the case of the death of a decree holder, the execution proceedings do not abate. By reason of Sections 146 and Order 21 Rule 16 CPC, the legal representatives of adecree holder, who died during the pendency of an execution petition, can be substituted in the execution petition and be allowed to continue it Article 120 of the Limitation Act, which prescribes a limitation period of 90 days applies only to the application that have to be filed by the legal representatives to be brought on record only in the case of suits or appeals from such suits and not to execution proceedings as Rule 12 of Order 22 of CPC expressly provides that nothing in Rule 3, 4 and 8 of Order 22 shall apply to the proceedings in execution of adecree or order."
5. The contention of the learned Counsel for petitioner, however, is that the present petition does not arise out of the execution of the decree or order. To appreciate this aspect, it becomes necessary to consider the effect of Order21 Rules 97 to 101 of CPC. They deal with the procedure to be adopted in the event of resistance or obstruction in possession of the property of the decree-holder and the nature of adjudication when an application was filed complaining of the above resistance of obstruction.
6. Learned Counsel for petitioner cited the judgment in N. Palaniappan v. G. Pandurangan, wherein the scope of the above provision was considered after the amendment Act, 1976 substituting new sub-rule 2 in place of earlier sub-rule 2 and introduced Rules 98 to 106. It was observed as follows:
"But, the amendment Act of 1976, though retained sub-rule (1) of Rule 97, substituted a new sub-rule (2) in the place of earlier sub-rule (2) and introduced new Rule 98 to 106. These amendments are in conformity with the legislative policy of entrusting the determination of all questions including questions as to the title of the concerned party by the executing Court. The main feature of the amendments made by 1976 Act is that all questions including the question as to the right, title or interest in the property arising between the parties to the proceeding under Rule 97 or Rule 98 must be determined by the executing Court and not left to be decided by way of separate suit. To ensure this, the earlier Rule 103 has been omitted and a new Rule 103 has been enacted providing that the order passed under these rules shall have the same force and shall be subject to the same conditions as to an appeal as if it were a decree. Consistent with these changes in the nature of the enquiry and the order passed therein, sub-rule (2) of Rule 97 has been amended by substituting the words "to adjudicate" for the words "for investigating'' Order 21 Rule 101 CPC after the said 1976 amendment runs as follows :
'All questions (including question relating to right, title or interest in the property) arising between the parties to a proceeding on an application under Rule 98 or Rule 99 or their representatives, and relevant to the adjudication of the application, shall be determined by the Court dealing with the application and not by a separate suit and for this purpose, the Court shall, notwithstanding any thing to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions."
Therefore, the scope of the proceedings has been now broadened so as to include all questions arising between the parties and relevant to the adjudication of the application, including questions as to the title of such parties in the property. These questions would include all those questions, which could have properly been raised in suits under the earlier Rule 103. To avoid delay, a deeming provision as to jurisdiction is also made, as stated above, in Order 21 Rule 101 CPC."
7. Thus it is clear that an application filed under Order 21 Rule 97 to 101 filed by the respondent's father should be decided as if it was a suit. All questions including the question to right, title and interest in the property arising between the parties should be decided. The parties instead of instituting a suit to establish their right and interest in their suit property are given the right to file an application while the decree was under execution and Court is bound to dispose of the same as if it was a suit. Hence, it is the case of the petitioner that the application being in the nature of suit filed by a stranger to the suit in the execution of a decree is not a proceeding in execution of the decree as contemplated in Order 22 Rule 12. I see considerable force in this argument. The suit was filed in 1982 and decree was obtained in 1988 and decree was almost executed by 9-12-1988, recovering possession of a small piece of the premises. Claim petition was filed by a 3rd party who died in 1990. The respondents filed the present application, after the earlier one filed in 1993, ended in dismissal and the same was also dismissed in 1996. But it should be borne in mind that the respondents are not sought to be brought on record as L.Rs. of either plaintiff or defendant in the suit during execution of the decree. The respondents are not claiming to be the L.Rs. of the decree-holder. The Decree-holders are very much alive and the execution being continued by the decree-holders themselves who are the petitioners. They are only L.Rs. of the claimant who is a stranger to the suit. The said application therefore cannot come within the purview of execution of the decree. It was an application claiming title and interest in the suit property and the application, as seen supra, should be treated as if it was a suit. It is not one filed by either plaintiff or defendant to apply Order 22 Rule 12. In the circumstances, since the said application has to be treated as a suit, Order 22 Rule 3 has to be followed and that application has to be filed within the period of limitation. Since the father of the respondents died in 1990, they should have filed this application within 90 day's thereof. They cannot seek to come on record in 1996, after six years seeking the protection of Order 22 Rule 12. The bar of limitation does attach to the application.
8. Learned Counsel for the respondent relied on a judgment in N.V. Chowdary v. State of Andhra Pradesh, wherein it was held that there the bar contemplated by Section 5 of the Limitation Act covers not only the orders made under. Order 21 CPC but also the proceedings which. have originated from Order 21 and which arc germane to any order passed in exercise of the powers conferred by Order 21 by the executing Court. The principle that was applied in that case was "whatever constraints of law the substantive proceeding is subjected to, the same shall continue to govern the subsidiary proceedings emanating from the main proceedings or as off-shoots of the main proceedings." But it should be seen, in the present case, the claim petition filed by the deceased cannot be said to be an off shot or subsidiary emanating from the main proceedings of the decree under execution. This is an independent application filed by third parry seeking to establish his right in the suit property. The above principle followed has no application to the facts of the instant case.
9. The lower Court followed the decision in Kantheri Damodara Gupta v. Kopomemo Venkateswara Rao, 1979 AN.WR 476 I have considered the case supra and discussed its effect. The judgment in B. Biksha Reddy and others v. G. Venuna Bai and others, 1982 An.WR 181 has in my view, no application to the facts of this case. It was held therein that though an order of Order 21 Rule 97 CPC has the same force as if it was a decree, it cannot be held that an application made under Rule 97 is a suit in all respects and that application be valued as recovery suit, so also the appeal under Order 21 Rule 101 CPC. It is true that the Court fee cannot be insisted to be paid as if it was the application was a suit.
10. Considering the above provisions of law and the pronouncements, in the circumstances, I am of the view that Order 22 Rule 3 govern the application filed, to bring on record the L.Rs. of the claimant/ deceased, under Order 21 Rules 97, 98 and 101 read with Section 47 of the Code of Civil Procedure.
11. The Civil Revision Petition has therefore, to be allowed and is accordingly allowed. The order of the Court below is set aside. E.A. filed by respondents i.e., E.A.No.96/96 stands dismissed. In the circumstances no costs.