Case Note & Summary
The case involves a Civil Revision Application filed by the judgment debtors (applicants) against an order of the Civil Judge, Junior Division, Chalisgaon, District Jalgaon, in Regular Darkhast No. 59/1986. The judgment debtors had filed an application under Order XXII, Rule 2 read with Section 151 of the Code of Civil Procedure, 1908, raising two objections: first, that upon the death of decree holder No. 2, Bhimkuvarbai w/o Sonusingh Patil, her legal heirs were not brought on record, and therefore the execution should be dismissed; second, that the decree holder had converted the land from agricultural to non-agricultural in revenue records, making the decree incapable of execution as the decree required delivery of possession of 13 Gunta of agricultural land. The Trial Court heard the parties and rejected the application under Order XXII, Rules 1 and 2 CPC. Aggrieved, the judgment debtors filed the present Civil Revision Application, contending that the impugned order suffered from material irregularity or illegal exercise of jurisdiction. The High Court, after hearing the counsel for the applicants and the caveator (respondent No. 2), held that Order XXII, Rule 2 CPC applies only to pending suits and not to execution proceedings after a decree has been passed. The death of a decree holder after the decree does not cause abatement, and execution can proceed without substitution of legal heirs, especially when the decree is joint and several. Consequently, the Civil Revision Application was dismissed, and the impugned order was upheld.
Headnote
A) Civil Procedure Code - Execution Proceedings - Abatement - Order XXII Rule 2 CPC - Death of Decree Holder After Decree - The judgment debtors objected that on death of decree holder No. 2, her legal heirs were not brought on record, and thus execution should be dismissed. The Trial Court rejected the application. Held that Order XXII Rule 2 applies only to pending suits and not to execution proceedings after a decree has been passed. The death of a decree holder after the decree does not cause abatement, and execution can proceed without substitution of legal heirs, especially when the decree is joint and several. (Paras 1-3)
Issue of Consideration
Whether the impugned order rejecting the judgment debtors' application under Order XXII Rule 2 read with Section 151 CPC suffers from material irregularity or illegal exercise of jurisdiction.
Final Decision
The Civil Revision Application is dismissed. The impugned order of the Trial Court is upheld.
Law Points
- Order XXII Rule 2 CPC applies only to pending suits
- not execution proceedings after decree
- death of a decree holder after decree does not cause abatement
- execution can continue without substitution of legal heirs if decree is joint and several.
Case Details
2014 LawText (BOM) (02) 22
Civil Revision Application No. 21 of 2014
Mr. L.V. Sangit for applicants, Mr. Girish Rane for respondent No. 2 - Caveator
Kasturabai w/o. Vyankat Kumbhar, Bhila s/o. Byankat Kumbhar, Shaligram s/o. Vyankat Kumbhar, Gendalal s/o. Vyankat Kumbhar, Kailash s/o. Vyankat Kumbhar
Pandit Sonusingh Patil, Ravindra s/o. Sonusingh Patil, Rajendra s/o. Sonusingh Patil, Bhimkuwarbai w/o. Sonusingh Patil (deceased), Sudha w/o. Ramdas Patil, Usha w/o. Pratapsingh Patil, Asha w/o. Mansingh Patil, Shashi w/o. Shivaji Patil, Nilkanthrao s/o. Madhavrao Patil
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Nature of Litigation
Civil Revision Application against order rejecting application under Order XXII Rule 2 CPC in execution proceedings.
Remedy Sought
The judgment debtors sought dismissal of execution on grounds of abatement due to death of decree holder and conversion of land use.
Filing Reason
The judgment debtors filed an application under Order XXII, Rule 2 r/w. 151 CPC objecting that on death of decree holder No. 2, her legal heirs were not brought on record, and that the land had been converted from agricultural to non-agricultural, making the decree incapable of execution.
Previous Decisions
The Trial Court rejected the application under Order XXII, Rule 1 and 2 CPC.
Issues
Whether the impugned order rejecting the application under Order XXII Rule 2 CPC suffers from material irregularity or illegal exercise of jurisdiction.
Submissions/Arguments
The learned counsel for the petitioners referred Order XXII, Rule 1, 2 and submitted that the death of decree holder No. 2 caused abatement and execution should be dismissed.
Ratio Decidendi
Order XXII, Rule 2 CPC applies only to pending suits and not to execution proceedings after a decree has been passed. The death of a decree holder after the decree does not cause abatement, and execution can proceed without substitution of legal heirs, especially when the decree is joint and several.
Judgment Excerpts
The present Civil Revision Application arises out of order passed by the learned Civil Judge, Junior Division, Chalisgaon, District Jalgaon in Regular Darkhast No. 59/1986.
The judgment debtors filed an application under Order XXII, Rule 2 r/w. 151 of Civil Procedure Code, raising objection that on death of decree holder No. 2 Bhimkuvarbai w/o. Sonusing Patil, her legal heirs were not brought on record and thus, the execution deserves to be dismissed.
The Trial Court heard the parties and the application under Order XXII, Rule 1 and 2 of C.P.C. has been rejected by the Trial Court.
Procedural History
The judgment debtors filed an application under Order XXII Rule 2 read with Section 151 CPC in Regular Darkhast No. 59/1986 before the Civil Judge, Junior Division, Chalisgaon. The Trial Court rejected the application. The judgment debtors then filed the present Civil Revision Application No. 21 of 2014 before the High Court of Bombay, Bench at Aurangabad.
Acts & Sections
- Code of Civil Procedure, 1908: Order XXII, Rule 1, Order XXII, Rule 2, Section 151
