Patna High Court
Panna Lal Agrawala vs Kanhaiya Lal Jain And Ors. on 18 December, 1973
Equivalent citations: AIR1974PAT284, AIR 1974 PATNA 284
JUDGMENT H.L. Agarwal, J.
1. This Miscellaneous appeal under Section 47 of the Cods of Civil Procedure is by one of the judgment-debtors against the orders of the Courts below rejecting his objection for dismissing an execution case in the following circumstances.
2. Respondent No. 1 Kanhaiya Lal Jain and one Misri Lal jain obtained a decree for eviction of the appellant and others from a piece of land on which they are running a petrol pump of Burmah Shell Company. The decree was put in execution in Execution Case No. 9 of 1960 in the Court of the Munsif, Hazaribagh, and delivery of possession was purported to have been effected by the Nazir on 6-8-1961. Three miscellaneous cases, namely, Nos. 83, 84 and 85 of 1961 were filed on various grounds by the judgment-debtor, which were all dismissed. Several years thereafter on the 15th March, 1966, the decree-holders again approached the Executing Court for issue of a fresh writ of delivery of possession. On this application by the decree-holders, objections were put in by the judgment-debtors and again three miscellaneous cases Nos. 36, 37 and 38 of 1966 were registered. Their main objection was that the execution case having been dismissed after effecting delivery of possession, the application of the decree-holders for issue of fresh writ of delivery of possession was incompetent and not maintainable. The Executing Court, however, dismissed all the Miscellaneous cases. Thereafter only one of the judgment-debtors preferred an appeal before the District Judge, Hazaribagh, which was registered as Miscellaneous Appeal No. 19 of 1966. This appeal was allowed. The decree-holders thereupon came up to this court in Miscellaneous Appeal No. 346 of 1966. This court allowed the said appeal on 25-1-1973 rejecting the objection of the judgment debtor and holding that the application filed by the decree holders on 15-3-1966 was maintainable and competent.
3. One of the decree holders, namely Misri Lal Jain died during the pendency of the appeal in the High Court and his heirs were substituted. No steps were, however, taken for bringing the said heirs on the record of the execution proceeding. On 16-2-1973, that is, after, the decision of this court in the aforesaid Miscellaneous Appeal, an application was filed on behalf of decree-holder Kanhaiya Lal Jain for proceeding with the execution case and effecting a fresh delivery of possession. This time fresh objection was taken by judgment-debtor Parma Lal on the ground that the application filed by Kanhaiya Lal Jain alone was not maintainable and was hit by the provision of Rule 15 of Order 21 of the Code of Civil Procedure. This case was registered as Miscellaneous Case No. 37 of 1973. On 1-9-1973, heirs of Misri Lal Jain applied for their addition as parties in the execution proceeding. This prayer was allowed by the Executing Court on 11-9-1973. On the same day, the objection of the judgment-debtor was, however, dismissed. An appeal was taken by him to the District Judge, but the same has been also dismissed and, therefore, the present appeal has been filed by him in this Court.
4. Learned Advocate-General appearing in support of the appeal with reference to Rules 15 and 17 of Order 21 of the Code of Civil Procedure has urged in this court that one of the decree-holders alone, namely, respondent No. 1 Kanhaiya Lal Jain was not entitled to apply in the Executing Court for taking delivery of possession of the property in question and the courts below have committed an apparent error of law in allowing his prayer. Learned Counsel appearing for the decree-holder respondent however has made a submission that the substitution of the heirs of Misri Lal Jain in the appeal before this Court arising out of the execution proceeding would amount to their addition or substitution, as the case may be, in the execution proceeding also, and, alternatively that the application made by respondent No. 1 Kanhaiya Lal Jain on 16-2-1973 was not made on his own behalf, but on behalf of and for the benefit of the entire body of the decree-holders.
5. Rule 15(1) of Order 21 of the Code of Civil Procedure reads as follows:
"Where a decree has been passed jointly in favour of more persons than one, any one or more such persons may, unless the decree imposes any condition to the contrary, apply for the execution of the whole decree for the benefit of them all, or, where any of them has died, for the benefit of the survivors and the legal representative's of the deceased."
This rule is based upon the principles of equity and good conscience for saving the judgment-debtor from harassment. It is the admitted case that both the decree-holders had applied for the execution of the whole, decree when the aforesaid execution case was filed. Let us now see as to whether the application made on 16-2-1973 by Kanhaiya Lal Jain indicated any other intention or was for the benefit of the survivor or legal representatives of the deceased decree-holder Misri Lal Jain also. In order to appreciate this question, let me refer to some of the statements made in the petition. This petition is purported to have been made on behalf of the decree-holders. After stating the entire development in the execution proceeding in detail at very stage, a prayer has been made (to pass an order directing upon the judgment-debtor No. 2 for removal of Petrol and Diesel Pumps and underground tanks with their contents by a certain date failing which necessary steps would be taken to get it removed through court and the costs will be borne by the judgment-debtor No. 2 before 'your petitioners' take further steps to obtain khas possession of the premises in question. Throughout in the body of this petition, there is no indication that it has been made by only one of the decree-holders for his personal benefit. In the earlier Miscellaneous Appeal, a direction was given by this court to the judgment-debtors to remove the petrol pump and underground tanks and its content from the premises in question and to allow the decree-holders to obtain khas possession over the premises in question in view of an undertaking given by the judgment-debtor in this court in Civil Revision No. 571 of 1963. I may also mention that judgment-debtor No. 2 M/s. Burmah Shell Oil Storage and Distributing Company, had also filed a petition on 1-5-1973 in the Executing Court to the effect that it had no objection in allowing the decree-holders to take delivery of possession of the suit land and it was ready to remove the petrol and diesel pumps and underground tanks etc., for which a reasonable time was also granted by the Executing Court.
6. The statements referred to above in the petition dated 16-2-1973 make the matter clear beyond all reasonable doubt that the decree was being executed for the benefit of all the decree-holders, and not for the benefit of Kanhaiya Lal Jain only. A Bench of this Court in the case of Kamal Kishore Pd. Sinph v. Harihar Pd. Singh, AIR 1951 Pat 645 held that it was not absolutely incumbent on the executing decree-holder to state in so many words in the execution petition itself that the decree was being executed for the benefit of all the decree-holders and if it appears to the court that the decree is, as a matter of fact, being executed for the benefit of all the decree-holders, it will allow the execution to proceed, even though such a statement does not find place in the application for execution. Be that as it may, the second point raised on behalf of the decree-holders by Mr. J.C. Sinha is also of great substance and is supported by a large number of authorities. The Supreme Court in the case of Rangubai v. Sunderabai, AIR 1965 SC 1794 has held that if the legal representatives of the deceased plaintiff or defendant are brought on record in an appeal or revision from an order made in the suit, it would enure for all subsequent stages of the suit. In this Supreme Court case during the pendency of an application for special leave to prefer an appeal to the Supreme Court against the judgment of the Bombay High Court, one of the respondents had died, steps for substitution of his legal representatives were taken in the trial Court, in the final decree stage and a question was raised that in view of the substitution of the legal representatives in the suit itself, there was no necessity of any such substitution in any subsequent proceeding which might be pending on that date in an appellate court. This contention was repelled by their Lordships who clearly held that if the legal representatives are brought on record at one stage of the suit, it will enure for the benefit of all the subsequent stages of the suit as an appeal or a revision was a continuation of the suit itself, and if such a substitution was made in the appeal or revision, it will be deemed to have been made in the suit itself. But in the reverse or converse situations, this legal position was held to be not correct, that is, if any .substitution was made in a suit when an appeal or revision was already pending, in which no steps for substitution were taken, that could not be projected backwards into the appeal which had already been filed before from an earlier order in the suit. In the case of Bateri Gope v. Radhakant Missir, 1965 BLJR 526, one of the respondents had died during the pendency of a second appeal in the High Court, steps for substitution having been taken, his heirs were brought on record and the appeal was remanded back to the lower Appellate Court, where no such steps were taken and the name of the deceased respondent continued with the dead man on the record without any substitution or issuing notice to the substituted heirs. In these circumstances, the learned Single Judge held that there could not be any doubt that the heirs of the deceased respondent who were brought on record of the case in the appeal in this court must be treated to be parties in the lower appellate court also. The learned Advocate-General, however, contended that as Rules 3 and 4 of Order 22 of the Code had no application to execution proceeding, the principles decided in the aforesaid cases should not be applied to the facts of this case. It is difficult to accept this contention of the learned Advocate General. What at all, in my opinion, is intended by the provision of Rule 12 of Order 22 of the Code is that an execution proceeding will not abate on account of the death of either a decree-holder or a judgment-debtor and no application for substitution was necessary, and nothing beyond that, and the legal representatives can apply under Order 21, Rule 16 of the Code to continue the application. The principles decided in the case of AIR 1965 SC 1794 (Supra) can very well be applied to an execution proceeding also if there is any substitution made in an appeal arising out of the execution proceeding. This court in the case of Mt. Gulab Kuer v. Syed Mohammad Zaffer, AIR 1921 Pat 180 (2) has held that an application under Order 21, Rule 16 was not fresh application for execution but merely for continuing the execution proceeding then pending. In a later decision of this court in Sukhdeo Bhagat v. Biswanath Singh, AIR 1965 Pat 85, a similar view was taken.
7. It may also be mentioned that on 1-9-1973, the heirs and legal representatives of Misri Lal Jain applied for being added as parties in the execution proceeding, which prayer was allowed by the Executing Court by its order dated 11-9-1973 and thereafter the Executing Court dismissed Miscellaneous Case No. 37 of 1973, filed by one of the judgment-debtors namely the appellant, which, in my opinion, in view of the discussions made above, was not at all necessary. Both the courts below have taken a similar view and have held against the judgment-debtor on the technical objection raised against the maintainability of the application filed by respondent No. 1 on 16-2-1973.
8. The questions raised on behalf of the appellant having been answered against him, this appeal has got no merit and it must fail. It is, accordingly, dismissed. The respondents will be entitled to their costs also.