Passey, J. - (1.) THIS appeal has arisen out of an application for the execution of a money decree. The Respondent, the First National Bank Ambala, had filed a suit for the recovery of 'Rs. 6200/1/6 against the Appellant, the A.S. Metal Mart through its proprietor Som Nath in the court of the Sub Judge Ist Class, Jullundur. That suit was decreed with costs ex parte on 31 -8 -1950 and the decretal amount was to carry interest at Rs. 6/ - per cent per annum from the date of the institution of the suit till realization. On 4 -7 -1951 the decree -holder applied to the Senior Sub Judge Jullundur for execution of the decree and claimed that a sum of Rs. 7362/2/5 including costs was due to him. As nothing could be recovered from the judgment -debtor at Jullundur, a certificate of non -satisfaction was granted on 18 -8 -1951 and the copy of the decree and the certificate were given to the decree -holder to be presented in the court of the District Judge Patiala for execution. After about nine months, viz., on 28 -9 -1952 the decree -holder drew up an application for execution, and submitted it to the District Judge Patiala on 30 -5 -1952 impleading Kishan Lal minor son of Som Nath as the judgment -debtor. This was considered necessary as Som Nath had died on 1 -10 -1951. It was prayed in that application that execution be effected against Kishan Lai instead of Som Nath. The application was, on the very day of its presentation, sent by the District Judge to the Sub Judge Ist Class Patiala for 'disposal in accordance with law'. Notice was issued to Kishan Lal who put in appearance through his guardian and contended that the Sub Judge Ist Class Patiala had no jurisdiction to entertain the application and to execute the decree against him, as the decree -holder had not applied to the Court that had passed the decree for impleading him as the representative of his father, and without doing so he could not be taken to have been legally or properly substituted. Various other objections having been also taken against the proposed execution, the learned Sub Judge framed the following issues: Whether the First National Bank (the decree -holder) is not in liquidation? onus on the decree -holder. Whether the Mukhtiar, Roshan Lal, is duly appointed by the authorised person? onus on the decree -holder. Whether the application is in proper form and is maintainable? onus on the decree -holder. and decided all of them against Kishan Lal. In deciding issue No. (3) the learned Sub Judge observed that after carefully considering the argument advanced on both sides, my opinion is that an application to bring the legal representative on the file and in the order of transfer must have been made to the proper court passing the decree, but it is curable by Section 99 Code of Civil Procedure which is pro -vided in the ruling cited by Mr. Sham Behari Lal. (Mr. Sham Behari Lai is the counsel Of the objector judgment -debtor). This fact is discussed at page 301 AIR Manual Volume 1 in which the same ruling referred to above is also discussed. This issue is decided in favour . of the decree -holder. Issue No. (3) is the chief point of contest before me, and the precise point that has been urged by the Appellants' counsel is that the executing court at Patiala had no jurisdiction to entertain the application for execution inasmuch as the decree -holder has not got the legal representative of Som Nath judgment -debtor impleaded by an order of the Jullundur Court that had passed the decree in the suit. As would be evident from the conclusions of the Sub Judge referred to above, this argument had found favour with him, but he gave no effect to it, as he thought that the I defect was curable under Section 99, Code of Civil Procedure In bringing Section 99, Code of Civil Procedure into play he apparently assumed jurisdiction wrongly. Section 99 says that no decree shall be reversed or substantially varied, nor shall any case be remanded in appeal on account of any misjoinder of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or jurisdiction of the Court. The language of the section is unambiguous and it clearly confers discretion upon an appellate court not to reverse or modify a decree for any error or irregularity not affecting the merits of the case or jurisdiction. A trial court cannot assume the role of an appellate court and condone material faults in its own procedure with the help of Section 99, Code of Civil Procedure. The decree that had been passed by the Sub Judge, Ist Class, Jullundur and that had been put into execution in the Jullundur Court, was one against the Metal Mart through Som Nath proprietor and the certificate of transfer under Order 21, Rule 6, Code of Civil Procedure had also been granted with Som Nath as a party . The defect in the application of having impleaded Kishan Lal without an order from the Jullundur Court was a grave one and had been pointed out to the court before execution had issued. The court should not therefore have connived at the irregular proceedings by permitting it to continue. The application, being at the initial stage, the decree -holder could have easily had the irregularity rectified by the proper court (which passed the decree) and proceedings before the executing court could, if necessary, have been in the meantime stayed.
(2.) THE main question whether before making an application to the transferee court for execution of the decree, the decree -debtor should have applied for substituting the deceased judgment debtor by his son to the court which passed the decree or to the court to which the decree had been transferred for execution, however remains to be determined. The relevant law that governs the case is Section 50, Code of Civil Procedure which states 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. The Section obviously applies to cases where the judgment -debtor dies after the decree has been passed but before it has been fully satisfied. In those cases, it is essential for the holder of the decree to apply to the court which passed it to allow its execution against the legal representative of the deceased. The words 'may apply' appearing in Section 50 in my view bear the sense of the words 'shall apply'; for, if the decree -holder does not apply, the execution proceedings would come to a close. The option that he can exercise is to apply to the court which passed the decree to execute the same against the legal representative of the deceased judgment -debtor or to give up the execution. On the question argued before me there is no dearth of authorities but the cases to which I have been referred by the counsel of the parties reveal a vast conflict of judicial opinion in India. Shri Nehra has cited - 'Sham Lal v. Modhu Sudan', 22 Cal 558 (A); - 'Marahmat Husain v. Oudh Commercial Bank Ltd.', : AIR 1931 All 320(2) (B); - 'Mt. Bcgam Bibi v. Bulaqi Shah', AIR 1926 Lah 34 (C) and - 'Debendra Nath v. G. A. Aratoon', : AIR 1941 Pat 139 (D) and the counsel of the Appellant depends upon - 'Swaminatha Ayyar v. Vaidyanatha Sastri', 28 Mad 463 (PB) (E); - 'Jang Bahadur v. Bank of Upper India Ltd.', AIR 1928 PC 102 (F); - 'Official Trustee of Bengal v. Basdeo Bhagatf, : AIR 1937 Pat 239 (G); - 'Manjulabai v. Pandurang Jairan', : AIR 1934 Bom 215 (H) and - 'Prasad! Mahton v. Ghulam Murtaza', AIR 1951 Pat 618 (I).
(3.) ON going through the judgments in these cases it becomes clear that prior to the decision in, AIR 1928 PC 162 (P) the High Courts of Cal -cutta and Lahore favoured the view that the court to which the decree had been transferred for execution could determine an application for substitution of a deceased judgment -debtor after the decree had been put into execution, while the rest of the High Courts before whom the question came up, uniformly held that the proper court to apply was only the court which had passed the decree. Even in the Lahore and Calcutta cases in which it was held that the application could be made to the transferee court a cautious observation had been made that even if it was wrong to apply to the transferee court, the defect was one of procedure curable under Section 99, Code of Civil Procedure In, AIR 1926 Lah 34 (C) the learned Judges of the Division Bench simply followed, 22 Cal 558 (A) and gave no reasons of their own. The operative portion of their judgment was as follows: Against this order the present appeal has been preferred and both the contentions raised in the Courts below have been put forward before us by Mr. Shuja -ud -din the learned Counsel for the judgment -debtor. We have no hesitation in holding that the view taken by the Calcutta High Court being more consonant with justice is correct, and, following that ruling, we hold that the application for substitution made in 1920, cannot be treated as being wholly ineffectual. What appeared to influence their Lordships was the justice of the case more than the legal aspect of the problem. In, 22 Cal 558 (A) it was held by a Division Bench consisting of Macpherson and Banerjee JJ. that the power of the Court executing a decree to order execution under Section 249 against the legal representative of a deceased judgment debtor, after the issue of notice under Section 248 is not cut down by the provisions of Section 234 which simply empowers the decree -holder to apply to the Court which passed the decree to execute it against the legal representative of a judgment -debtor who is dead, and that the Court where the decree has been transferred has full jurisdiction to allow execution to proceed against the legal representative. It was held further that even assuming that an application under Section 234 to the Court which passed the decree was a necessary preliminary to proceedings under Section 248 by the Court executing the decree the omission to make it was only an irregularity which did not affect the merits of the case, and under Section 578, the order of the Court of first instance should not have been reversed on account of such irregularity. In Amar Chundra v. Guru Prosunno Muker -jee', 27 Cal 488 (J) Banerjee and Stevens JJ. gave a different decision. It was held that In a case where a decree has been transferred to Anr. Court for execution and that Court orders the execution to proceed after substitution of the name of the transferee of the decree, the said order is one passed without jurisdiction, and can be set aside on appeal, notwithstanding the provisions of Section 578 Code of Civil Procedure Both these Calcutta cases were considered in, AIR 1928 PC 162 (P) and it was held by their Lordships that. before execution can proceed against the legal representative of the deceased judgment -debtor, the decree -holder must get an order for sub situation from the Court which passed the decree. This is a matter of procedure and not of jurisdiction. The jurisdiction over the subject -matter continues as before, but a certain procedure is prescribed for the exercise of such jurisdiction. If there is non -compliance with such procedure the defect might be waived; and the party who has acquiesced in the Court exercising it in a wrong way cannot afterwards turn round and challenge the legality of the proceedings. Two points of fundamental Importance were thus made clear (i) that the application for substitution of a deceased judgment -debtor must be made to the court which passed the decree and that Section 50, Code of Civil Procedure lays down a rule of procedure and not of jurisdiction (sic). It was however in view of the particular circumstances of the case before them indicating sustained acquiescence . or waiver of the party raising the objection for a long time in the court executing the decree that their Lordships refused to hear the objector against the procedure that was followed in the executing court. In : AIR 1931 All 320 (2)(B) it was held following AIR 1928 PC 162 (F), that. Section 50(1) does not give an exclusive jurisdiction to the Court which passed a decree for the purposes of substituting the names of legal representatives for a deceased judgment -debtor, and an application may be also made to and orders passed by a Court to which a decree has been transferred for execution. That was again a case of waiver as would be apparent from the following observations of the learned Judges that decided if: Now applying the ruling (meaning, AIR 1928 PC 162 (F) to the present case we find that the Appellant cannot make any valid objection to the exercise of such jurisdiction in addition of other three persons for the deceased judgment -debtor by the order of 29 -11 -1924. We also note that the three persons whose names were to be substituted by the order of 29 -11 -1924 made no objection to the addition of their names, nor has any objection even been made ' by them although six years have elapsed. In : AIR 1941 Pat 139 (D) reliance was placed upon AIR 1928 PC 162 (P) and it was held that. When the Court to which a decree has been transferred for execution makes an order for substitution under Section 50, it is a matter of procedure and not of jurisdiction; and that consequently an appellate Court cannot by reason of Section 99 interfere with that order where the merits of the case are not affected by the irregularity. In that case evidently the learned Judges were influenced by the merits of the case and they decided not to interfere, particularly because the Appellants resided within the jurisdiction of the transferee court and 'prima facie' therefore it was more convenient for them to have the matter decided in that court than by the court which passed the decree. The defect in procedure was condoned on the ground of convenience and as authorised by Section 99, Code of Civil Procedure None of the authorities referred to by Shri Nehra has any bearing on the case before me in which the application for substitution was not made to the court decreeing the suit and in which no question of waiver or acquiescence could arise, as the objection to the maintainability of the application . had been taken at the earliest opportunity before any order for execution had been made by the executing court. : AIR 1937 Pat 239 (G); : AIR 1934 Bom 215 (H) and, AIR 1951 Pat 618(I) appear to me to be more appropriately in point. In : AIR 1937 Pat 239 (G) it was laid down that. if a judgment -debtor dies during execution, it is irregular for the Court "which has not passed the decree to proceed with the execution against the representatives of the deceased judgment -debtor without fresh order from the Court which passed the decree, as under Section 50 the application for such execution is to be made to the Court which passed the decree. In : AIR 1934 Bom 215 (H) a Division Bench of the Bombay High Court held that. where a decree is transferred to Anr. Court for execution subsequent to the death of the judgment -debtor, an application to bring his legal representative on the record must be made to the Court which passed the decree and not to the Court to which the decree is transferred for execution. , AIR 1951 Pat 618 (I) was a case the facts of which were almost parallel to the one before me. It was held in that case that. where a judgment -debtor dies before the decree has been satisfied, the decree -holder should apply to the Court which passed the decree for the substitution of the legal heirs of the judgment -debtor. The executing Court to which the decree is transferred for execution cannot legally decide who is the legal heir who represents the estate after the death of the judgment -debtor. Where the decree -holder has not obtained any decision from the Court which passed the decree on this point and a person who was added as the judgment -debtor on the application of the decree -holder, raises an objection under Section 47 on this ground to the maintainability of the execution at his first appearance, the execution case is not maintainable. In the case before me as soon as the Appellant had received the notice that the execution was intended to proceed against him, he appeared before the court and at once took this objection regarding the maintainability of the execution proceedings. That objection was taken when in fact no execution had issued and no steps had been taken for execution and the court was yet called upon to decide whether it was competent or not to entertain the application of the decree -holder. In : AIR 1937 Pat 239 (G) and, AIR 1951 Pat 618 (I) also the objection had been taken immediately by the judgment -debtor on his appearance in court and the objection was allowed to prevail by the High Court.;