Case Note & Summary
The petitioner, Ashrafali, was the decree holder in O.S.No.38/2014 for specific performance of contract. The trial Court decreed the suit directing the judgment debtor, Hari Rama Birje, to execute a registered sale deed in favor of the petitioner upon receiving balance sale consideration of Rs.8,50,000/- and to convey title and possession of the suit property, an agricultural land measuring five acres bearing R.S.No.122/5. The petitioner filed Execution Petition No.01/2017 before the Senior Civil Judge, Khanapur. During the pendency of the execution, the judgment debtor died. The Executing Court, by order dated 15.03.2018, closed the execution petition for the time being with liberty to open when cause of action calls for, on the ground that the decree holder had not taken steps to bring the legal representatives of the deceased judgment debtor on record within the prescribed time. Aggrieved, the petitioner filed this civil revision petition under Section 115 of the Code of Civil Procedure, 1908. The High Court examined the provisions of Order 22 Rule 12 CPC, which states that nothing in Rules 3, 4, and 8 of Order 22 shall apply to execution proceedings, and such proceedings shall not abate by reason of the death of the judgment debtor. The Court held that the Executing Court erred in closing the execution petition on the ground of abatement, as execution proceedings do not abate. The Court set aside the impugned order and directed the Executing Court to proceed with the execution in accordance with law, after permitting the decree holder to bring the legal representatives of the deceased judgment debtor on record.
Headnote
A) Civil Procedure Code - Execution of Decree - Abatement - Order 22 Rule 12 CPC - The Executing Court closed the execution petition for the time being on the ground that the judgment debtor died and the decree holder did not take steps to bring LRs within time - Held that Order 22 Rule 12 CPC provides that execution proceedings do not abate by reason of death of the judgment debtor, and the decree holder is entitled to continue the execution against the legal representatives - The impugned order was set aside and the Executing Court was directed to proceed with the execution in accordance with law (Paras 1-10).
Issue of Consideration
Whether the Executing Court was justified in closing the execution petition for the time being on the ground that the judgment debtor had died and the decree holder had not taken steps to bring the legal representatives on record within the prescribed time.
Final Decision
The High Court allowed the civil revision petition, set aside the impugned order dated 15.03.2018 passed by the Senior Civil Judge, Khanapur, and directed the Executing Court to proceed with the execution in accordance with law, after permitting the decree holder to bring the legal representatives of the deceased judgment debtor on record.
Law Points
- Execution of decree for specific performance
- abatement of execution petition
- substitution of legal representatives
- Order 22 Rule 12 CPC
- Section 115 CPC
