1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO.1596 OF 2009 IN EXECUTION APPLICATION NO.231 OF 2000 IN SUIT NO.3641 OF 1998 Jetu Jacques Taru Lalvani ..... Plaintiff. V/s Kwality Fine Chemicals and others ..... Defendants. And Mrs. Madhukanta Chandulal Parikh w/o late Chandulal D. Parikh ..... Respondent. Mr. Yogendra Singh i/b Mr. N.K. Mudnaney for plaintiff. Mr. P.R. Naidu for respondent. CORAM: V. M. KANADE, J. DATE : 12TH JANUARY, 2010 P.C.:- 1. Heard the learned Counsel for the plaintiff and the learned Counsel for the respondent. 2. This Chamber Summons has been taken out by the plaintiff for deleting the name of deceased defendant No.5 2 and bringing on record his wife as legal heir and representative and also for making consequential amendments as mentioned in the schedule of the proposed amendment. 3. The learned Counsel appearing on behalf of plaintiff submitted that consent terms were filed in the suit on 17/10/2002 and on 21/02/2006 and, accordingly, suit was decreed in terms of the consent terms. He then submitted that defendant No.5 has expired on 5/9/2008 and, therefore, an application is made by him for amending the execution application. 4. The learned Counsel appearing on behalf of the respondent herein submitted that the amendment cannot be allowed. It is submitted that respondent was not a party to the suit and, therefore, there is gross delay in making this application and, therefore, an order had to be passed under Order XXII Rule 9 of the Civil Procedure Code since the suit had abated and no application was filed for setting aside the abatement. In support of the said submission, he relied upon the judgment of the learned Single Judge of this Court (as he then was) in Jayalaxmi Janardhan Walawalkar v. Lilachand Laxmichand Kapasi and others1. He also relied upon the judgment of the Apex Court in State of Gujarat v. Sayed Mohd. Baquir El Edross2. He further relied upon the recent judgment of the Apex Court in Katari Suryanarayana 1 1998(3) Mh.L.J. 618 2 AIR 1981 SC 1921 3 & Ors v. Koppisetti Subba Rao & Ors.1 5. The learned Counsel appearing on behalf of plaintiff, on the other hand, submitted that provisions of Rules 3, 4 and 8 of Order XXII would not apply in case of proceedings which are taken out for execution of the decree in view of the specific provision laid down under Order XXII Rule 12 of the Civil Procedure Code. 6. I have heard both the Counsel at length. In my view, ratio of the judgments on which reliance is placed by the learned Counsel appearing on behalf of respondent would not apply to the facts of the present case. It is an admitted position that, during life time of defendant No.5, consent terms were filed on two occasions, firstly on 17/10/2002 and thereafter on 21/02/2006 and decree was passed in terms of the consent terms. Thereafter, by the time execution proceedings were initiated, defendant No.5 had expired on 5/9/2008. Under these circumstances, therefore, provisions of Rules 3, 4 and 8 of Order XXII would not apply and, as such, question of abatement of suit would not arise. Order XXII Rule 12 reads as under:- “ORDER XXII DEATH, MARRIAGE AND INSOLVENCY OF PARTIES 12. Application of Order to proceedings.- Nothing in rules 3, 4 and 8 shall apply to 1 AIR 2009 SC 2907 4 proceedings in execution of a decree or order.” 7. The submission made by the learned Counsel appearing on behalf of respondent, therefore, in my view is misconceived. The ratio of the judgments on which reliance is placed by the learned Counsel appearing on behalf of the respondent would not apply to the facts of the present case since in these three judgments on which reliance is placed by the Counsel for respondent, suit was pending and no decree was passed or even if decree was passed an appeal was pending before the appellate court and during the pendency of appeal or pendency of suit one of the parties to the suit had expired. The submission made by the learned Counsel for the respondent, therefore, cannot be accepted. There is no limitation prescribed for bringing the heirs on record in execution application. Atleast no provision is pointed out either by the counsel for plaintiff or respondent in that regard. 8. The learned Counsel appearing on behalf of plaintiff, however, submits that he does not wish to press prayer clause (c) of the Chamber Summons and that he would take out appropriate Chamber Summons seeking the said relief. He, therefore, seeks permission to delete the said prayer clause (c) with liberty to file separate Chamber Summons. Leave is granted to the plaintiff to delete the prayer clause (c) with liberty to file fresh Chamber Summons at a 5 subsequent stage. 9. Chamber Summons is allowed in terms of prayer clause (b). Amendment to be carried out within four weeks. 10. Chamber Summons is disposed of. (V.M. KANADE, J.)