1 IN THE HIGH COURT OF OMBAY AT GOA WRIT PETITION NO. 520 OF 2007 Shri Shantaram Guno Priolkar & Anr. ….. Petitioners V/s. Smt. Ethelvina Caldeira (dec.) By her LR’s (a) Mr. Edward Perpetua John Caldeira & Anr. ….. Respondents Mr. S. D. Lotlikar, Senior Advocate with Mr. R. Menezes, Advocate for the Petitioner Mr. Nigel Da Costa Frias, Advocate for Respondents under legal aid scheme. CORAM : S.C. DHARMADHIKARI, J. DATE : 22 nd July 2008. ORAL ORDER : Heard both sides. With their consent, petition is taken up and disposed of finally. 2. The impugned Orders are by Executing Court. The first order under challenge before me in this petition permits the heirs and legal representatives of decree-holder being brought on record, that is by 2 allowing an application dated 14/11/06. By the order delivered on 10/4/07, this application was allowed. 3. On the same day, the application made by the judgment debtor, Exhibit 29-D praying for declaring execution application as a nullity and to suspend attachment of one third salary of judgment debtor has been rejected. 4. As far as the application to bring on record heirs of deceased decree holder is concerned, there is no specific provision under which it has been made. That apart, the power of attorney holder Mrs. Eslinda Fernandes has stated before the Executing Court that the decree holder expired on 21/1/1995 in London in U.K. The decree holder is survived by the sons, whose names are enlisted in the application. The legal representatives executed power of attorney in favour of the applicant/power of attorney holder/Ms. Eslinda Fernandes in London on 12/4/2002. It is stated that the decree holder had filed an application to execute a decree passed in her favour on 15/2/1995, although the power of attorney holder had mentioned the fact of the death of the decree holder to the then Advocate, but it appears that the Advocate did not take any steps to implead the legal representatives of the deceased decree holder. The applicant/power of 3 attorney holder continued to be under impression that the heirs are on record. Having noticed this defect, now an application is made and that is how the Executing Court must condone the delay. 5. This application was opposed by the present petitioners/judgment debtors pointing out that the decree holder had expired prior to the decree of the lower appellate Court. To be precise, she expired on 21/1/1995. They brought on record, the death certificate. In such circumstances, the power of attorney holder being aware of the death of the decree holder proceeded to prosecute the appeal and the judgment and decree of the lower appellate Court being pronounced in proceedings, where the appellant/decree holder had already expired does not bind the judgment debtor. That apart, the contention was that the power of attorney came to an end on the expiry of the original decree holder and therefore no execution application could have been filed on that basis. 6. The Executing Court in para 6 of the impugned order has found no substance in the contention of the power of attorney holder with regard to she being diligent in prosecuting the proceedings or that she having informed the lawyer to take necessary steps and the lawyer omitted to do so. The observations in para 6 of the impugned order read thus: 4 “6. By the present application since it is the case of the Power of Attorney of the legal heirs of the deceased decree holder that she had informed to the earlier advocate on record about the death of decree holder and she was not aware whether the legal heirs were brought on record or not earlier and came to know only when new lawyer was appointed. There is no affidavit of the new advocates on record to confirm that the said Power of Attorney came to know that the legal representatives are not brought on record after his appointment. It is seen that the Power of Attorney for the legal representative is also the same lady who was the Power of Attorney of the deceased decree holder and she had produced the said Power of Attorney dated 12/4/2002 on record. It is not denied by the judgment debtor no. 2 that the legal heirs mentioned in the present application are the legal heirs of the deceased decree holders. It is seen that when the Power of Attorney was executed by the legal representatives on 12/4/2002, the application for bringing on record the legal heirs is filed by Power of Attorney on 14.11.2006. It is also seen that after disclosing the fact of death of decree holder by judgment debtor no.2, the deduction of the salary of judgment debtor no.2 were stopped by this Court and then only the Power of Attorney came with another Power of Attorney executed by the legal heirs of the deceased decree holder. However, it is seen that, it is only the Power of Attorney who is conducting and looking after this matter. 5 Therefore, the mistakes committed by her should not prevent the legal representatives from enjoying the fruits of the judgment and decree passed in their favour. Law provides that a number of applications can be filed to get executed the judgment and decree. No doubt that there are many technical defects arose on account of the conduct of the Power of Attorney in following the proper procedure of law in this case but since technicalities should not prevent the flow of justice, I find that the delay in filing his application for bringing legal heirs on record has to be condoned and this application has to be allowed and case can be decided on merits. However, for the inconvenience caused the judgment debtor no. 2 on account of the conduct of said power of attorney, a proper compensation has to be awarded to be paid to the judgment debtor no. 2.” 7. Thus, on the spacious plea that inconvenience will be caused to parties, the application for condonation of delay has been granted and the application for impleading the heirs and legal representatives has been allowed on payment of costs. 8. When the attention of the learned Advocate appearing for the heirs and legal representatives of the deceased decree holder was invited to these observations, he found it difficult to support the order. There is nothing pointed out which would demonstrate that there is application of mind to 6 the aspect of delay and whether sufficient cause has been shown for not being able to amend the execution application earlier. In the present state of affairs, when there is a serious dispute as to whether the very same power of attorney holder could have continued with the proceedings for execution of the decree and when the version in her affidavit filed in the proceedings, has not been accepted, interest of justice would be subserved if the petition is allowed to the limited extent, that is by quashing and setting aside the order dated 10/4/07 which is passed below application dated 14/11/06 that is Exhibit-D-26. However, merely because the order is set aside that does not prevent heirs of the deceased decree holder bringing in a fresh application for Execution of the subject decree. Therefore, liberty to file fresh application for execution of the decree is granted and all such pleas on merits thereof are kept open. By giving liberty to file a fresh application, the impugned order is quashed and set aside and the petition is allowed to that extent. 9. As far as the maintainability of the execution application is concerned, I am of the view that once the execution application No. 33/98/C does not survive after the impugned order dated 10/4/07 is quashed and set aside, then, there is nothing which would warrant this Court undertaking an exercise and finding out whether the decree is enforceable 7 or executable in law or a nullity, as contended by the judgment debtor. As and when the fresh application for execution is filed, it will be open for judgment debtor to raise this issue and the same should be gone into and considered by the Executing Court, without being influenced by its earlier observations and findings. 9. Mr. Lotlikar’s apprehension is that by this Court’s order and observations, what is conveyed is that only the plea with regard to enforceability and executability of the decree would survive but the maintainability of the execution application filed by the power of attorney holder on behalf of the deceased decree holder is answered against them. This apprehension has no basis, because once the execution application was filed in the name of the deceased by the power of attorney holder and it is undisputed that the power of attorney must come to an end that after death of the deceased. The order allowing impleadment of heirs of the deceased decree holder being quashed and set aside by me demonstrates that the instant execution application itself does not remain on the file of the Executing Court, when it does not so remain, then, the apprehension is unfounded. S. C. DHARMADHIKARI, J. NH/-