Decided on November 16,1954

RAM LOHIA Appellant
MT.MANNO Respondents


Falshaw, J. - (1.) The facts in this execution appeal are that one Ram Gopal obtained a compromise decree for Rs. 12,787/12/- on the basis of a mortgage against Sri Hum Lohia appellant. Ram Gopal died while the execution proceedings were pending and his widow, two sons and minor grandsons through their fathers applied under Order 22, Rule 3, Civil P. C., to continue the execution proceedings as his legal representatives. This was opposed by the judgment-debtor on the strength of the provisions of Order 22, Rule 12, which are to the effect that nothing in Rules 3, 4 and 8 shall apply to execution proceedings. The executing Court held that the relations of the deceased decree-holder could not be substituted for him in the execution application but that under the provisions of Order 21, Rule 16, and under Section 146 they could continue the pending execution proceedings. It is against this order that the judgment-debtor has appealed.
(2.) His contention, which appears to mo to be somewhat captious, is that although the legal representatives of the deceased decree-holder can execute the decree, they must do so by means of a fresh execution application and they cannot carry on the one which was pending. This contention is based on the decision in -- 'Baij Nath v. Ram Bharos', AIR 1927 All 165 (FB) (A), in which a Full Bench of five Judges held that there is no rule of law which enables the legal representative of a deceased decree-holder to apply for mere substitution of names and he must apply, whenever he docs apply, for fresh execution even when his predecessor's application is pending. This view was also followed by a Division Bench of the Luck-now Chief Court in -- "Muhammad Sadiq Ali Khan v. Sajjad Mirza', AIR 1928 Oudh 30 (B).
(3.) As against this, however, there in an overwhelming preponderance of authority from other Courts including the Bombay, Calcutta, Nagpur, Madras and Patna High Courts in -- 'Shankar Balchand v. Hiralal Balchand; AIR 1931 Bom 425 (2) (C); -' Annacharya Sitaramacharya v. Narayan Paiidurang', AIR 1933 Bom 358 (D); -" Annanda Prasad v. Sushil Kumar Mandal', AIR 1942 Cal 390 (E); -- 'Tejraj Rajmal v. RAM Pyari', AIR 1938 Nag 528 (F); -- 'Venkauchelam Chetty v. Ramaswami Servai', AIR 1932 Mad 73- (FB) (G) and -- 'Mt. Bhagwanta Kuer v. Zamir Ahmad Khan', AIR 1924 Pat 576 (H). ';

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