Decided on December 07,1966

Ramnibas Agarwalla Appellant
Mt. Padumi Kalita And Ors. Respondents


C.S. Nayudu, J. - (1.) TWO points have been urged by Mr. Sen, the learned Counsel for the Appellant in appeal No. M.A. (S) 4 of 1964, - firstly that substitution of the heirs of one of the deceased decree -holders, who died during execution, is not possible under the law but a fresh application for execution should have been filed and secondly that without a succession certificate having been obtained under Section 214 of the Indian Succession Act, execution cannot proceed.
(2.) THE facts of the case are that a joint decree was passed in favour of a number of decree -holders and a joint application for execution was filed into Court. During the pendency of this application one of the decree -holders died. The other decree -holders on record applied to the executing Court for substituting the heirs of the deceased decree -holder and for proceeding with the execution. This was ordered negativing the above two contentions raised by the judgment -debtor before the executing Court. On appeal to the Subordinate Judge, it was held that the order of the executing Court was correct and no interference was called for. In the Court below an adjustment of the decree was also applied for and apparently as no application was made within the time provided for under Order 21, Rule 2 of the Code of Civil Procedure this point has not been seriously pressed before me. At the outset an objection was raised by Mr. Medhi appearing for the Respondents that there is no right of second appeal and that only a revision lay. On an examination of the question, it is clear that the order passed by the executing Court is one which fell within Section 47 of the Code of Civil Procedure. This being so, the order amounts to a decree and a first appeal is provided for against a decree, and if Section 100 applied, a second appeal would also lie. The question that arises is whether Section 102 of the Code of Civil Procedure excludes the right of appeal it is not disputed that the decree was in ejectment and for rent. Obviously this is not a suit of small cause nature and hence Section 102 would not be in the way of a second appeal in the instant case I am, therefore, clearly of opinion that the second appeal now filed before me is competent under law.
(3.) HAVING thus cleared the preliminary objection, it would be necessary to consider the two points on which reliance has been placed by Mr. Sen. Regarding the substitution of the heirs of a deceased decree -holder, the procedure is clearly laid down in Order 21, Rule 15 of the Code of Civil Procedure which is as follows: (Rule reproduced.) It is clear from the above provision that where a decree is passed jointly in favour of a number of persons and one of them dies, two courses are open to the surviving decree -holders -firstly to proceed with the execution in their own names on behalf of themselves as well as the surviving heirs of the deceased decree -holder, in which event the Court may make appropriate order under Sub -rule (2) of Rule 15 of Order 21, quoted above, or apply for substituting the heirs of the deceased decree -holder to be brought on record so that execution may proceed in the names of all of them and for the benefit of all. This is exactly what has been sought for in this case and I am clearly of opinion that no exception could be taken to this procedure.;

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