MEDABOYINA SEETHANNA Vs. ARUBANDI SANKARA LAKSHMI DEVI

JUDGEMENT

(1.) This is an appeal against the Order of the Subordinate Judge Visakhapatnam, accepting an application to add the legal representatives of the second judgment-debtor in O.S. No. 80 of 1933. It arises in the following circumstances. In execution of a decree obtained by the present respondents against three persons including the predecessors-in- interest of the appellants, some of the properties belonging to the three judgmentdebtors were brought to sale on 16th August, 1954 and were purchased by the decree-holders themselves. The sale was confirmed on 20th September, 1954. Sometime later, the decree-holder-auction-purchasers filed a petition in the District Munsifs Court, Rajam, for delivery of possession of these properties making all the judgment-debtors parties to that application. It may be mentioned here that the decree was transferred to the District Munsifs Court, Rajam, for execution, as the properties of the judgment-debtors were situate within the jurisdiction of that Court. It is for that reason that the application for delivery was presented in that Court. Meanwhile, the second judgment-debtor seems to have died. The auction-purchasers coming to know of it, filed the petition in the Sub-Court that passed the decree which has given rise to the present appeal, for adding the appellants as the legal representatives of the deceased second judgment-debtor under section 50 of the Civil Procedure Code. This was opposed by the judgment-debtors on the ground that section 50, Civil Procedure Code is inapplicable to the instant case. The trial Court negativing this contention allowed the petition and ordered the legal representatives of the second judgment-debtor to be brought on record. It is this judgment that is now under appeal. The argument presented by Sri Dikshitulu, learned counsel for the appellants is that as the application to bring the legal representatives on record was not filed within three years of the death of the judgment-debtor the relief prayed for ought not to have been granted. It is urged by the learned counsel that as no period of limitation is prescribed for delivery of possession of the properties the residuary Article, i. e., Article 181 of the Limitation Act governs such a case and since in this case the application for delivery impleading the proper persons as parties thereto was not filed within the time contemplated by Article 181, it should have been rejected. The fact that the application for delivery was made in the District MunsiPs Court, Rajam, against a dead person would be of no avail to the auctionpurchasers as in law it does not amount to an application for delivery, and it is only when the legal representatives of the deceased judgment-debtor are brought on record that the petition under Article 181 must be deemed to have been presented, proceeds the argument of Sri Dikshitulu.

(2.) .We are not persuaded that this objection is substantial. It may be that Article 181 governs applications of this kind. But the only requirement of that Article is that it should be preferred within three years. It does not contemplate as to who should be impleaded as parties thereto. It is not disputed that the application for delivery of possession was filed within three years of the confirmation of sale, impleading all the judgment-debtors one of whom died by that time. What we have now to consider is whether this is fatal to the application. The provision of law which deals with the addition of legal representatives of a deceased party is Order 22, Civil Procedure Code. That Order lays down that if the legal representatives are not brought on record within the time specified therein, the proceedings would abate. A perusal of that Order reveals that it applies only to suits and appeals and is inapplicable to proceedings in execution of a decree or order. Sri Dikshitulu maintains that the fact that Order 22, rule 12, Civil Procedure Code, takes an execution application out of the pale of Order 22, Civil Procedure Code, does not help the respondents for the reason that an application for delivery of possession of property is not one in execution of a decree. Even so, how does it help the appellants ? As we have already remarked, Order 22, Civil Procedure Code, governs only suits and appeals and does not come into play in regard to other proceedings If there is no other law which compels a party to bring on record the legal representatives within a particular time, it cannot be posited that an application to bring the legal representatives 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.

(3.) It is only for that purpose the present application was brought. It is to be borne in mind that after the sale is confirmed the title to the property covered by the sale vests in the auction-purchasers and nothing remains in the judgment-debtor. That being so, there is nothing for the judgment-debtor to urge by way of answer in an application for delivery of that property. Consequently, it is not necessary to issue notice to the* judgment-debtor in such an application. If it is unnecessary to serve the judgment-debtors with notice, it is equally so even with regard to their legal representatives because they could oppose such an application only on grounds which were open to the judgment-debtors. So, possession could be obtained without notice to them or even without formally bringing them on record. This view of ours gains support from the judgment of the Madras High Court in Pethaperumal v. Chidambaram, (1954) 1 M.L.J. 585 : I.L.R. (1954) Mad. 1206 . It was ruled by a Division Bench of the Madras High Court consisting of Rajamannar, C.J., and Rajagopala Ayyangar, J., that there was 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 Order 21, rule 96 without impleading them could not be held to be void. The argument of Sri Dikshitulu in this behalf is that this proposition is unsound and should not be accepted by us. We are not persuaded that the rule as stated by the learned Judges in that case is incorrect. On the other hand we are firmly of opinion that it is in consonance with the general principles of law.