((-1-)) mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO.2056 OF 2002 Mayur Dwarkadas Doshi & anr. Applicants versus Dena Bank and others Respondents Ms.M.S.Parasnis with G.S.Godbole for applicants. Mr.Ashok Tajane for respondent no.4. None for respondent no.1. CORAM : SMT.R.P.SONDURBALDOTA, J. DATE : 09th July 2008. PC :- 1. This Civil Revision Application arises out of the orders dated 17th June 2002 passed by the Second Joint Civil Judge, Senior Division, Pune on Exhibits 47 and 59 taken out by the applicants in Special Darkhast No.72 of 1986. 2. The facts giving rise to the instant application are as follows. The respondent no.1 herein-Dena Bank filed Special Civil Suit No.266 of 1978 in the Court of Civil Judge, Senior Division, Pune for recovery of amounts due from M/s.Dwarkadas Furnishers Pvt.Ltd; ((-2-)) Dwarkadas Doshi, Kamruddin H. Poonawalla and Mrs.Anuradha D. Doshi. The suit was decreed on 2nd March 1982 holding that four defendants were jointly and severally liable to pay Rs.1,22,900/- along with interest. Thereafter, the respondent no.1 filed Special Darkhast No.72 of 1996 on 31st March 1986 for execution of the decree. At that time, Dwarkadas G. Doshi-original defendant no.2/ judgement debtor no.2 was no more having died on 17th December 1983. Some time in the year 1991, respondent no.1 filed an application at Exhibit-19 for bringing legal representatives of deceased Dwarkadas Doshi on record. Applicant no.1 herein got Vakalatnama filed on his behalf on 11th October 1991. Another Vakalatnama had been filed on behalf of applicant no.2. However, thereafter, the application at Exhibit-19 was not pursued and it remained pending. Eight years thereafter i.e. on 3rd April 1999, the respondent no.1 filed a fresh application to amend the application for execution to bring heirs of deceased defendant no.1 on record. This application was allowed on the very day and also the amendment effected. No notice of the application was served upon any of the heirs of the deceased ((-3-)) defendant. Thereafter, on 23rd July 1999 a warrant of attachment of immovable properties of the applicants came to be issued. 3. As soon as the applicants learnt about the warrant of attachment, they filed applications at Exhibits 47 and 59 for setting aside the order of granting amendment to bring the heirs of deceased defendant on record and issuance of warrant of attachment respectively. The applications came to be rejected by the impugned orders. Therefore the instant Civil Revision Application. 4. Heard Ms.Parasnis for the applicant. Mr.Ashok Tajane appearing for respondent no.4 states that he supports the applicants submissions. By order dated 30th June 2006, names of respondent nos.2 and 3 are deleted. The respondent no.1 is absent despite service of notice. 5. Ms.M.S.Parasnis, learned counsel for the applicants submits that there was gross error on the part of the learned Trial Judge in rejecting the two applications. She pointed out that on the date of filing of the execution ((-4-)) proceedings on 31st March 1986 Dwarkadas was already dead having died on 17th December 1983. Therefore, there could be no execution proceedings as against him. As rightly pointed out, the execution application filed against a dead person was a nullity as far as he was concerned. Though respondent no.1 filed an application for bringing the heirs of deceased defendant on record in the year 1991, the same apparently was not pursued though there was Vakalatnama entered by applicant no.1 in that application. Eight years thereafter i.e. on 3rd April 1999, the respondent no.1 filed a fresh application to amend the execution proceedings to bring the heirs of deceased defendant on record. Ms.Parasnis submits that there could not have been a second application for bringing the heirs of deceased defendant on record. Therefore, the learned Trial Judge ought to have allowed the application at Exhibit-47 filed by the applicants. Perusal of the impugned order on Exhibit-47 shows that the learned Trial Judge granted the application solely on the ground that in the year 1991 the legal representative of defendant no.1 had appeared upon service of notice and hence had knowledge of the proceedings pending against ((-5-)) them. Ms.Parasnis submits that the appearance filed by the applicant no.1 was only in application at Exhibit-19 and not in the original execution proceedings. There was no question of the applicants’ filing appearance in the original execution proceedings because they had not been brought on record because they were yet to be brought on record. Therefore, the reliance placed by the learned Judge on the filing of the appearance by the applicant no.1 in the year 1991 is misplaced. Further, it was incumbent upon the learned Trial Judge to issue fresh notice on the application filed by respondent no.1 in the year 1999. Therefore, the impugned order on Exhibit-47 cannot be sustained. 6. It is next submitted by Ms.Parasnis that even if the order of the Trial Court allowing the applicants to be brought on record as heirs of deceased Dwarkadas is accepted to be correct, it will have to be held that the execution proceedings against the applicants herein are hopelessly barred by Law of Limitation. She submits that the execution proceedings against the applicants herein will have to be deemed to have been filed on 3rd ((-6-)) April 1999 i.e. the day on which application for bringing the applicants on record was allowed and the execution proceedings amended. This is after a lapse of seventeen years from the date of decree. This date being beyond the limitation of twelve years of the passing of the decree, the execution application is barred by Article 136 of the Indian Limitation Act, 1963 insofar as legal representatives of the deceased Dwarkadas are concerned. 7. In this connection Ms.Parasnis relied upon the decision of our High Court in The Presidency Industrial Bank Ltd. Vs. The Hindustan Leather Industries Ltd. and others reported in AIR-1969-Bom-84 wherein in a similar situation our High Court had held that the execution application was barred by limitation insofar as far as the legal representatives of the deceased judgement debtor are concerned. Ms.Parasnis submits that this decision which is directly applicable to the instant case, was pointed out to the learned Trial Judge. He, however, dismissed the same by a single line reasoning that in his opinion the reliance is not helpful to the applicants. There is no discussion whatsoever ((-7-)) of the legal proposition laid down in the decision and its applicability to the case on hand. Ms.Parasnis relies on another decision of our High Court in Gulabsingh s/o Umraosingh Bhiraras and another Vs. Nathu s/o Ramkisansa and another reported in AIR(31) -1944- Nagpur- 145. This decision has been quoted with the approval by our High Court in the decision of The Presidency Industrial Bank Limited (supra). The facts of the present case when seen in the light of the decisions cited by the applicants, make it very clear that the execution proceedings as against the applicants are hopelessly barred by Law of Limitation. 8. In the above circumstances, the impugned orders cannot be sustained. The impugned orders dated 17th June 2002 passed by the Second Joint Civil Judge, Senior Division, Pune on Exhibits 47 and 59 taken out by the applicants in Special Darkhast No.72 of 1986 are set aside. The applications at Exhibits 47 and 59 are allowed and execution proceedings as against the applicants are dismissed. (SMT.R.P.SONDURBALDOTA, J.)