Case Note & Summary
The petitioners, legal heirs of the deceased judgment debtor Rajaram Dadasaheb Nimbalkar, challenged an order dated 24 June 2011 passed by the Learned Civil Judge Junior Division, Kolhapur, disposing of Misc Application No.1351 of 1980 by observing that since the objector was dead, the objections were 'filed' for want of the objector. The background involves a money decree dated 25 June 1974 in favor of the respondent Bank. Execution proceedings were initiated, and the mortgaged property was auctioned, with the Bank itself purchasing it. On 3 May 1980, the Bank filed Misc Application No.1351 of 1980 under Order 21 Rule 95 CPC for possession. The judgment debtor had died, and his son Dhaiyrasheel and daughter Supriya were brought on record as legal representatives. Dhaiyrasheel filed objections at Exhibit 50, and a separate objection at Exhibit 75 was filed by petitioner Nos.1 and 3 and Supriya. The executing court dismissed the Bank's application on 6 July 1991, holding the property was HUF and the objectors were minors. The Bank challenged this in Civil Revision Application No.778 of 1991, during which Dhaiyrasheel died and his wife Mayura was brought on record. By consent order dated 7 June 2001, this Court set aside the 1991 order and directed the executing court to treat the objections as under Order 21 Rule 97 CPC and decide them on merits. Subsequently, the Bank sought fresh notices to heirs, and the executing court issued notices to Ushadevi and Dhaiyrasheel. The petitioners appeared and informed the court of Dhaiyrasheel's death, but the executing court, instead of substituting the heirs, dismissed the objections as 'filed' for want of objector. The High Court held that the objections under Order 21 Rule 97 CPC do not abate on the death of the objector; the legal heirs can be substituted. The impugned order was set aside, and the executing court was directed to substitute the petitioners as legal representatives and decide the objections on merits within six months.
Headnote
A) Civil Procedure Code - Execution Proceedings - Objections under Order 21 Rule 97 - Survival of Objections - The issue was whether objections filed under Order 21 Rule 97 CPC abate on the death of the objector. The Court held that such objections do not abate and the legal heirs can be substituted to pursue them. The executing court's order dismissing the objections as 'filed' for want of objector was set aside. (Paras 1-6)
B) Civil Procedure Code - Substitution of Legal Representatives - Order 22 Rule 3 - Applicability to Execution Proceedings - The Court held that the principle of substitution of legal representatives applies to execution proceedings, and the executing court ought to have allowed substitution of the heirs of the deceased objector instead of dismissing the objections. (Paras 4-6)
Issue of Consideration
Whether objections filed under Order 21 Rule 97 of the Code of Civil Procedure, 1908 abate upon the death of the objector, or whether the legal heirs can be substituted to continue the objections.
Final Decision
The High Court allowed the writ petition, set aside the impugned order dated 24 June 2011, and directed the executing court to substitute the petitioners as legal representatives of the deceased objector and decide the objections on merits within six months from the date of receipt of the order.
Law Points
- Objections under Order 21 Rule 97 CPC survive the death of the objector
- Heirs can be substituted to continue objections
- Executing court cannot dismiss objections as 'filed' for want of objector without considering substitution
Case Details
2011 LawText (BOM) (12) 43
Writ Petition No.9869 of 2011
Mr. Ravi Kadam, Advocate General with Mr. V. M. Thorat with Mr. Pratap Patil for the Petitioners, Mr. P. S. Dani with Ms Gargi Bhagwat i/b M/s. Divekar & Co. for the Respondents
Ushadevi Rajaram Nimbalkar & Ors.
The Ratnakar Bank Limited
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Nature of Litigation
Writ Petition challenging an order of the executing court dismissing objections under Order 21 Rule 97 CPC as 'filed' for want of objector due to death.
Remedy Sought
The petitioners sought setting aside of the order dated 24 June 2011 and direction to the executing court to substitute them as legal representatives and decide the objections on merits.
Filing Reason
The executing court dismissed the objections filed under Order 21 Rule 97 CPC on the ground that the objector had died, without allowing substitution of his legal heirs.
Previous Decisions
The executing court had earlier dismissed the Bank's application for possession on 6 July 1991, which was set aside by this Court on 7 June 2001 in Civil Revision Application No.778 of 1991, with a direction to treat objections as under Order 21 Rule 97 and decide on merits.
Issues
Whether objections under Order 21 Rule 97 of the Code of Civil Procedure, 1908 abate upon the death of the objector?
Whether the executing court was justified in dismissing the objections as 'filed' for want of objector without allowing substitution of legal heirs?
Submissions/Arguments
The petitioners argued that the objections under Order 21 Rule 97 CPC do not abate on the death of the objector and the legal heirs are entitled to be substituted to continue the objections.
The respondent Bank argued that the executing court's order was correct as the objector had died and no substitution was sought.
Ratio Decidendi
Objections under Order 21 Rule 97 of the Code of Civil Procedure, 1908 do not abate upon the death of the objector; the legal heirs can be substituted to continue the objections. The executing court erred in dismissing the objections as 'filed' for want of objector without considering substitution.
Judgment Excerpts
The above Petition takes exception to the Order dated 24-6-2011 passed by the Learned Civil Judge Junior Division, Kolhapur, by which Order, the Misc Application No.1351 of 1980 came to be disposed of by observing that since the objector is dead, the objections are 'filed' for want of the objector.
In my view, the objections under Order 21 Rule 97 of the Civil Procedure Code cannot be said to have abated on the death of the objector. The legal heirs of the deceased objector can be substituted to continue the objections.
Procedural History
A money decree was passed on 25 June 1974 in favor of the Bank. Execution proceedings were initiated, and the property was auctioned; the Bank purchased it. On 3 May 1980, the Bank filed Misc Application No.1351 of 1980 under Order 21 Rule 95 CPC for possession. The judgment debtor died; his son Dhaiyrasheel and daughter Supriya were brought on record. Dhaiyrasheel filed objections at Exhibit 50; a separate objection at Exhibit 75 was filed by petitioner Nos.1 and 3 and Supriya. On 6 July 1991, the executing court dismissed the Bank's application. The Bank filed Civil Revision Application No.778 of 1991; during its pendency, Dhaiyrasheel died and his wife Mayura was brought on record. On 7 June 2001, this Court set aside the 1991 order and directed the executing court to treat objections as under Order 21 Rule 97 and decide on merits. Subsequently, the Bank sought fresh notices; the executing court issued notices to Ushadevi and Dhaiyrasheel. The petitioners appeared and informed of Dhaiyrasheel's death. On 24 June 2011, the executing court dismissed the objections as 'filed' for want of objector. The petitioners filed the present writ petition.
Acts & Sections
- Code of Civil Procedure, 1908: Order 21 Rule 95, Order 21 Rule 97, Order 22 Rule 3
