Bombay High Court
Smt. Laxmi Lal Aswani (Since Deceased) ... vs Smt. Archana Sharma-Kachwaha on 5 March, 2026
2026:BHC-AS:11179
k 1/4 27 cra 26.22 as.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL REVISION APPLICATION NO.26 OF 2022
Laxmi Lal Aswani
since deceased by her L.Rs.
1/1 Lal Nathirlal Aswani
since deceased by his heirs
1/2 Dilip Lal Aswani & Ors. ....Applicants
V/S
Archana Sharma - Kachwaha ....Respondent
AND
M/s. Gigatech Private Limited & Ors. ....Non-Applicants
_________
Mr. Dilip Aswani - Applicant in person present in Court.
Ms. Anjali Purav for Respondent.
__________
CORAM : SANDEEP V. MARNE, J.
DATE : 05 MARCH 2026.
P.C.:
1. The Revision Application challenges order dated 2 November 2019 passed by the learned Judge, City Civil Court, allowing Chamber Summons No.1183 of 2011 and permitting legal heirs of the Decree-
Holder to be brought on record.
2. I have heard Mr. Dilip Aswani, Applicant-in-person and Ms. Purav, the learned counsel appearing for Respondent.
3. It appears that the Chamber Summons for bringing on record legal heirs of Decree Holder is allowed by the Trial Court under a mistaken belief that provisions of Order XXII Rule 12 of the Code of Civil katkam Page No. 1 of 4 ::: Uploaded on - 07/03/2026 ::: Downloaded on - 13/03/2026 21:34:58 ::: k 2/4 27 cra 26.22 as.doc Procedure, 1908 (the Code) apply even to Obstructionists proceedings. In the present case, the Opponent is the Obstructionist, who has filed proceedings under Order XXI Rule 58 of the Code to obstruct the decree. Order XXII Rule 12 of the Code provides that Rules 3, 4 and 8 do not apply to execution proceedings. This ensures that death of Decree Holder does not result in abatement of execution proceedings. The rule is for benefit of the Decree Holder. Reliance by the Applicant in this regard on judgment of the Apex Court in Varadarajan vs. Kanakavalli & Ors.1 is apposite, in which it is held in paragraph 8 as under:
"8 We may state that Order XXII of the Code is 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 v. Ashrab & Ors. (1990) 3 SCC 148 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 v. 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 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, 1 Civil Appeal No.5673 of 2009, decided on 22 January 2020.katkam Page No. 2 of 4 ::: Uploaded on - 07/03/2026 ::: Downloaded on - 13/03/2026 21:34:58 :::
k 3/4 27 cra 26.22 as.doc provisions as to abatement do not apply. The Rule is, therefore, for the benefit of the decree-holder, for his 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 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."
4. In the present case, when the Decree Holder passed away, diligent steps were taken on behalf of the Decree Holder to bring on record her legal heirs within the permissible time though it was not necessary under provisions of Order XXII, Rule 12 of the Code. The Obstructionist however failed to take the steps to bring on record legal heirs of the Decree Holder. Provisions of Order XXII, Rule 12 of the Code would not apply to Obstructionist. It is well settled position that Obstructionist notice is required to be decided as if it is a Suit. Reliance by the Applicant on judgment of the Madras High Court in Kamatchi and Others vs. Arulmigu Uchinimahali Amman Deity and Others 2 is an apposite. In which it is held in paragraph 15 as under:
"15. In the case on hand, the petitioner Mathiyalagan has filed a petition under Order 21 Rule 97 CPC. At this juncture, it is necessary to refer to the decision of Hon'ble Supreme Court in Sheo Prakash and another Vs. Vishnu and others [Special Leave to Appeal [Civil] No. 11310 of 2007], dated 19.11.2007, wherein the Hon'ble Supreme Court has clearly observed that the proceedings under Order 21 Rule 97 CPC are treated to be as a suit for all intent and purport and hence, the provisions of Order 22 Rule 3 CPC shall apply to the proceedings initiated under Order 21 Rule 97 CPC."
5. In my view therefore, the City Civil Court has erred in giving the benefit of provisions of Order XXII, Rule 12 of the Code to the 2 CRP PD (MD) Nos.569 to 575 of 2019, decided on 7 October 2021.
katkam Page No. 3 of 4 ::: Uploaded on - 07/03/2026 ::: Downloaded on - 13/03/2026 21:34:58 :::k 4/4 27 cra 26.22 as.doc Obstructionist. Legal heirs of the Decree Holder are permitted to be brought on record in the Obstructionist's proceedings as a matter of course ignoring the position that there was delay of over 800 days in the filing Application for bringing legal heirs on record. In the meantime, abatement had occurred and no prayer was made for setting aside the abatement. In my view therefore, Obstructionist was required to make out a case for setting aside abatement and for condonation of delay. The application for bringing on record legal heirs cannot be allowed as a matter of course in Obstructionist notice by giving benefit of provisions of Order XXII Rule 12 of the Code. The impugned order is thus unsustainable and liable to be set aside. However, the Obstructionist would be at liberty to file fresh Application for setting aside the abatement and for condonation of delay in bringing on record legal heirs of the Decree Holder. It appears that one of the legal heirs of the Decree Holder has also passed away and it would be open to the Obstructionist to apply for the Court for bringing on record legal heirs of that heir as well.
6. The Revision Application is accordingly allowed by setting aside the order dated 2 November 2019. However, it is clarified that Obstructionist would be at liberty to take out fresh Application for setting aside abatement and for condonation of delay in bringing on record legal heirs of the Decree Holder. If such Application is filed, the same shall be decided by the City Civil Court on its own merits.
SUDARSHAN RAJALINGAM KATKAM (SANDEEP V. MARNE, J.) Digitally signed by SUDARSHAN RAJALINGAM KATKAM Date: 2026.03.07 11:04:03 +0530 katkam Page No. 4 of 4 ::: Uploaded on - 07/03/2026 ::: Downloaded on - 13/03/2026 21:34:58 :::