BHARGAVA, J. -
(1.)THE point to be determined in this revision application by the decree-holder is whether the delivery of possession in a partition decree after the death of the judgment debtor without bringing his legal representatives on record is void.
(2.)PETITIONER and his brother Bhim Shankar had purchased 2/3rd share in a house situated in Jaipur City, Rasta Bhairunji Kundigaran at a court auction about 18 years back. One of the co-owners of that house brought a suit for partition in which Gauri Shankar and Bhim Shankar were also parties and which was finally decreed by this Court on 26-10-1966. The decree provided : "the parties will give and take possession in accordance with the terms of the decree within one month from today failing which it would be open to any one or more of them to take necessary steps according with this decree. The parties will bear their own costs in this Court. A final decree shall be drawn accordingly. The list of the various apartments Nos. 1 to 20 along with their valuation as put by the Commissioner and the site plan prepared by him will be form part of the final decree. " It may be mentioned that by this decree separate apartments in the house were allotted to the parties.
On 3rd January, 1968, Gauri Shankar and Bhim Shankar (hereinafter called the petitioners) made an application in the court of the Civil Judge. Jaipur City for the delivery of apartments allotted to them by the final decree. On this application notice under O. 21 r. 22 of the Civil Procedure Code was issued to Gulab Chand husband of non-petitioner No. 1, Gulabchand, refused to take notice on 24th January, 1968 and so it was affixed at his house. The next date of hearing was 9th March, 1968, but before that date Gulabchand expired on 17th February, 1968. The fact of Gulabchand's death was not brought to the notice of the court and on 9th March, 1968, warrant for delivery of possession was issued. When the Nazir went to execute the warrant on 2nd April, 1968, Gulabchand's widow and his sons resisted the delivery of possession But on 14th April, 1968, possession was delivered to the petitioners with the help of the police. Thereafter, on 15th April 1968 Gulabchand's widow made an application to the court under sec. 151 of the Code for restoration of possession on the ground that the proceedings for delivery of possession after the death of Gulabchand were void. The learned Civil Judge accepted the application and by his order dated 5th July, 1968, ordered restoration of possession. It is against this order that the present revision application has been filed.
The contention of the learned counsel for the petitioners is that in proceedings for delivery of possession in a decree for partition, no notice under O. 21 r. 22 of the Code was necessary to judgment debtor Gulabchand and as such proceeding for delivery of possession cannot be held to be void because his legal representatives were not brought on record after his death. It is urged that the mode of executing decrees for possession of immovable property under O. 21 r. 35 and 36 corresponds to r. 95 and 96 respectively. If once judgment debtor's property has been auctioned and the sale has been confirmed issuing of notice to the judgment debtor under O. 21 r. 23 is not necessary in an application for delivery of possession by the auction purchaser. Similarly, in an application filed by one of the co-owners in a decree for partition for delivery of possession, notice is not required to be given to the other coowners. Reliance is placed on Biyyakka vs. Fakira (l), Pethaperumal Ambalam vs. Chidambaram Chettiar (2) and Medaboyina Seethanna vs. Arubandi Sankara Lakshmi Devi (3 ).
Learned counsel for Mst. Ganga relies upon S. 50 of the Code of Civil Procedure which provides that where a judgment-debtor dies before the decree has been fully satisfied, the holder of the decree may apply to the Court which passed it to execute the same against the legal representative of the deceased. It is urged that this section applies to every decree and the judgment debtor's legal representatives are required to be brought on record before the decree is fully satisfied even in a partition decree, Learned counsel contends that unless possession is delivered it cannot be said to have been fully satisfied and if the judgment debtor dies before delivery of possession, his legal representative ought to be brought on record otherwise the proceedings shall be void against him. Reliance is placed on Ragunath Das vs. Sunder Das Khetri (4), Ajablal Dubey vs. Hari Charan Tewari alias Hari Tewari (5) (FB.), Minor Smt. Shanti Devi vs. Khandubala Dasi (6) and Mubarak Begum vs. Sushil Kumar (7 ).
In my view the decisions relied upon by the learned counsel for Mst. Ganga are all distinguishable. They lay down the principle that the court sale of the property of the judgment debtor after his death without impleading his legal representatives, does not bind the representative at whatever stage of the execution proceedings the judgment debtor might have died irrespective of whether the sale was in execution of the money decree or rent decree or a final decree for sale in a mortgage suit. This principle is based on the ground that until the sale is confirmed the decree holder or the auction purchaser does not acquire any title to the property and it remains the judgment debtor's property and on his death devolves upon his legal representatives. It is immaterial whether the decree is a money decree or a mortgage decree because in the case of latter class of decree also the judgment debtor remains the owner of the property inspite of the final decree for sale in a mortgage suit.
In the present proceedings however, this is not the case. On a partition either made through court or between the parties themselves, each of the former coowners becomes the sole and exclusive owner of the apartments allotted to him and is deprived of his title to the other portions which are allotted to the other parties. The right to possession also follows from title so that each of them is entitled to possess the portion allotted to him to the exclusion of the others. It therefore, follows that after the final decree in the suit was passed, no title was left in Gulabchand in the rooms allotted to the present petitioners and as such on his death no right or interest in the said rooms devolved upon his legal representatives. In such cases, therefore, the principle laid down in Pethaperumal Ambalam's case (2) and Medaboyina Seethanna's case (3), should apply. Although the above two cases were under O. 21 r. 94, 95 and 96, but as already stated the same procedure applies to an application under O. 21 r. 35 and 36. It was held in Pethaperumal Ambalam's case (2) that : "after the issue of a sale certificate under O. XXI, r. 94, of the Civil Procedure Code (Act V of 1908), the purchaser's title becomes perfected and complete and his right to possession is unimpeachable as against the parties to the suit as well as those claiming under them. The Code does not contemplate any notice to the judgment-debtor at that stage or any objection being raised by him to the delivery of possession under r. 95 or R. 96. Therefore, there is no legal obligation on the part of a decree-holder to implead the legal representatives of a deceased judgment-debtor at that stage, and the proceedings taken under O. XXI, r. 96, without impleading them cannot be held to be void. " Similarly in Madaboyina Seethanna's case (3) which followed the Madras case, it was held that : "o. 22, Civil P. C. , which deals with addition of legal representatives of a deceased party is inapplicable to proceedings in execution of a decree or order. There being no law which compels a party to bring on record the legal representative within a particular time, it cannot be posited that an application to bring the legal representative on record in proceedings other than suits or appeals abates or lapses. The legal representatives have to be brought on record in such proceedings before final orders are passed, so that the orders might be binding on them. After an execution sale the property covered by the sale vests in the auction-purchaser and there is nothing for the judgment-debtor to urge by way of answer in an application made by the decree-holder auction-purchaser for delivery of possession of property sold in auction. Consequently, it is not necessary to serve the judgment-debtor or his legal representative with notice in such an application. Thus, there is no legal obligation on the part of a decree-holder to implead the legal representatives of a deceased judgment debtor at the stage of taking delivery of possession of property and the proceedings taken under O. XXI, r. 96, without impleading them cannot be held to be void. "
I am, therefore, of the view that the proceedings taken in the court after the death of Gulabchand were not void. Besides this, learned counsel for Mst. Ganga has not been able to show how the rights of the legal representatives of Gulab Chand have been affected by the delivery of possession. No prejudice has been shown to have been caused to them by their non-substitution after the death of Gulabchand. Under the terms of the decree the parties themselves could take possession of the rooms allotted to them and in such circumstances, notice was required to be given to any one. On the same analogy if the decree holder applies to the court for assistance in securing delivery of possession, notice is not required to be given to the judgment debtor or his legal representatives. I am therefore, unable to accept the argument advanced on behalf of Mst. Ganga's counsel.
The revision application is therefore, allowed, and the order passed by the court below is set aside. But in the circumstances of the case no costs are allowed to the petitioner of this revision application. .