IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN FRIDAY, THE 17TH DAY OF JUNE 2011/27TH JYAISHTA 1933 OP(C).No. 703 of 2010 (O) AGAINST THE ORDER DATED 24.9.2010 IN I.A.NO.1194 OF 2007,1195/2007, 1616/2008 AND 1617/2008 IN AS.159/2007 OF the DOSTRICT COURT, PALAKKAD. PETITIONER/PETITIONER/APPELLANT: A.K.SIVARAMAN, S/O.PONNAN, CHATHAPURAM ,KALPATHY,PUTHUR AMSOM PALAKKAD TALUK,PALAKKAD DISTRICT. BY ADVS.SRI.O.RAMACHANDRAN NAMBIAR SRI.GEEN T.MATHEW RESPONDENTS:RESPONDENTS: RESPONDENTS: 1. K.V.NARENDRANATHAN,S/O.VISWANATHAN SREENADHAM,PALLANCHATHANUR AMSOM, PIN-678575, PALAKKAD TALUK AND DISTRICT. 2. HARIHARAN (DIED) 3. VENKITA KRISHNAN(DIED) THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 17-06-2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE MEMORANDUM OF APPEAL IN A.S.NO.159 OF 2007 BEFORE THE DISTRICT COURT, PALAKKAD. EXT.P2 TRUE COPY OF THE PETITION I.A.NO.1194 OF 2007 IN A.S.NO.159 OF 2007 BEFORE THE DISTRICT COURT, PALAKKAD. EXT.P3 TRUE COPY OF THE PETITION I.A.NO.1195 OF 2007 IN A.S.NO.159 OF 2007 BEFORE THE DISTRICT COURT, PALAKKAD. EXT.P4 TRUE COPY OF THE COUNTER DATED 21.5.2008 IN EXHIBIT P2. EXT.P5 TRUE COPY OF THE COUNTER DATED 21.5.2008 IN EXHIBIT P3. EXT.P6 TRUE COPY OF THE PETITION I.A.NO.1616 OF 2008 IN A.S.NO.159 OF 2007 BEFORE THE DISTRICT COURT, PALAKKAD. EXT.P7 TRUE COPY OF THE PETITION I.A.NO.1617 OF 2008 IN A.S.NO.159 OF 2007 BEFORE THE DISTRICT COURT, PALAKKAD. EXT.P8 TRUE COPY OF THE COMMON ORDER DATED 24.9.2010 IN EXTS.P2, P3, P6 AND P7. RESPONDENTS' EXHIBITS: NIL //TRUE COPY// AHZ/ K.T.SANKARAN, J. ------------------------------------------------------ O.P.(C). NO. 703 OF 2010 ------------------------------------------------------ Dated this the 17th day of June, 2011 JUDGMENT The petitioner challenges Ext.P8 order dated 24.9.2010 in I.A.Nos.1194 of 2007, 1195 of 2007, 1616 of 2008 and 1617 of 2008 in A.S.No.159 of 2007, on the file of the Court of the District Judge, Palakkad. The appeal, A.S.No.159 of 2007, was filed against the order dated 30.7.2007 in the execution proceedings in O.S.No.656 of 1994 before the Sub Court, Palakkad, by which, the application filed by the petitioner under Rule 97 of Order XXI of the Code of Civil Procedure was dismissed by the executing court. 2. The suit was filed by Venkitakrishnan against Hariharan for realisation of money. In execution of the decree, the property belonging to the judgment debtor was sold in auction and it was purchased by K.V.Narendranathan. When delivery was attempted to be made, the petitioner obstructed. He also filed an application under Rule 97 of Order XXI of the O.P.(C) NO.703 OF 2010 :: 2 :: Code of Civil Procedure before the executing court. The executing court dismissed that application by the order dated 30.3.2007. Before the order dated 30.3.2007 was passed by the executing court, the judgment debtor Hariharan and the decree holder Venkitakrishnan passed away. Their legal representatives were not brought on record and it was not brought to the notice of the Court by any of the parties. The executing court passed the order as if the decree holder and the judgment debtor were alive. 3. As stated earlier, challenging the order passed by the executing court, the petitioner filed A.S.No.159 of 2007 before the District Court, Palakkad. Notices sent to Hariharan and Venkitakrishnan were returned unserved stating that they were dead. At that juncture, the petitioner filed I.A.No.1194 of 2007 to implead the legal representatives of the decree holder and I.A.No.1195 of 2007 to amend the cause title in the appeal consequent to the impleadment of the legal representatives. Likewise, I.A.No.1616 of 2008 was filed by the petitioner to implead the legal representatives of the judgment debtor. O.P.(C) NO.703 OF 2010 :: 3 :: I.A.No.1617 of 2008 was filed for consequential amendment of the cause title. 4. The court below, relying on the decision in Paru v. Devaki Varassiar (1992 (2) KLT 687), dismissed the applications. 5. In Paru v. Devaki Varassiar (1992 (2) KLT 687), after taking note of the various decisions of the Kerala High Court, it was held thus: “3. In the decision reported in Meenakshy Pillayathiri Amma v. Lakshmi (1967 KLT 777) this court noticed that the proper procedure to be adopted is to apply to the court which passed the decree and to seek the impleading of the legal representatives of the deceased party and to get a rehearing of the suit or appeal. This decision was noticed by a Division Bench in the decision reported in Abdulla v. Damodaran Namboodiri (1972 KLT 53) where it was held that the action of a trial court, to which the matter had been remanded, in placing the matter before the appellate court which remanded the matter and O.P.(C) NO.703 OF 2010 :: 4 :: bringing to its notice the fact that at the time the appellate judgment was rendered one of the parties to the appeal had died was approved by this court thereby indicating that the proper procedure to be adopted was to go to the court which had passed the decree without knowledge of the death of a party before it. In the decision reported in Assyamma v. Aisabi (1976 KLT 101) it was clearly stated that a decree passed by the first appellate court in ignorance of the fact of death is a nullity in the eye of law. It was further stated “strictly speaking, there was no decree to be appealed against”. In the light of these decisions it appears to me to be clear that the remedy of the legal representatives of the deceased appellant before the Lower Appellate Court lay in approaching that court to get the appeal reopened, to get themselves impleaded and to proceed with the appeal in accordance with law.” 6. In Paru v. Devaki Varassiar (1992 (2) KLT 687), while the appeal was pending before the lower Appellate Court, the sole appellant died. Without noticing the death of the appellant, the Appellate Court heard and disposed of the appeal. The legal representatives of the deceased appellant O.P.(C) NO.703 OF 2010 :: 5 :: filed a Second Appeal. The maintainability of the appeal was doubted. The learned Judge held thus: “6. It must also be remembered that it was due to the error committed by the legal representatives of the deceased appellant that the death of the appellant was not brought to the notice of either counsel who was appearing for him in the Lower Appellate Court or to the court. Once the legal representatives have come to know that the appeal has been decided on the merits at a time when their predecessor-in-interest had died, according to me, the only remedy available to them is to move that court to get the decree reopened and to get themselves impleaded in that appeal. In that view of the matter I hold that the Second Appeal filed by the legal representatives of the deceased appellant in A.S.99 of 1989 on the file of the subordinate Judge's Court of Payyannur is not maintainable.” 7. In the present case, the petitioner filed an application under Rule 97 of Order XXI of the Code of Civil Procedure. The decree holder, the judgment debtor and the auction purchaser were respondents in that application. On the death O.P.(C) NO.703 OF 2010 :: 6 :: of the decree holder and the judgment debtor, it was the duty of the petitioner to file an application for bringing on record the legal representatives of the decree holder and judgment debtor. He did not do so. Without the knowledge of the death of the decree holder and the judgment debtor, who were respondents in the application filed by the petitioner, the application filed by the petitioner was dismissed. The petitioner is not entitled to challenge that order on the ground that it is a nullity on account of the non-impleadment of the legal representatives of the decree holder and the judgment debtor. The remedy of the petitioner is to file an application before the executing court to bring on record the legal representatives of the deceased decree holder and judgment debtor. The petitioner is not entitled to contend that the order passed by the executing court should be set aside by the Appellate Court entitling the petitioner to file the necessary applications before the executing court. The Appellate Court has no jurisdiction to consider the legality or otherwise of the order passed by the executing court as the said order was passed with dead persons on the party array. The view taken by the court below is correct. O.P.(C) NO.703 OF 2010 :: 7 :: 8. The learned counsel for the petitioner submitted that the execution proceedings would not abate on the death of some of the respondents in view of Rule 12 of Order XXII of the Code of Civil Procedure. Rule 12 of Order XXII of the Code of Civil Procedure provides that nothing in Rules 3, 4 and 8 shall apply to the proceedings in execution of a decree or order. The Supreme Court in V.Uthirapathi v. Ashrab Ali (AIR 1998 SC 1168) considered the scope and ambit of Rule 12 of Order XXII of the Code of Civil Procedure and held thus: “15. It is clear, therefore, that if after the filing of an execution petition in time, the decree holder dies and his legal representatives do not come on record or the judgment debtor dies and his legal representatives are not brought on record, then there is no abatement of the execution petition. If there is no abatement, the position in the eye of law is that the execution petition remains pending on the file of the execution Court. If it remains pending and if no time limit is prescribed to bring the legal representatives on record in execution proceedings, it is open in case of death of the decree holder, for his legal representative to O.P.(C) NO.703 OF 2010 :: 8 :: come on record at any time. The execution application cannot even be dismissed for default behind the back of the decree holder's legal representatives. In case of death of the judgment debtor, the decree holder could file an application to bring the legal representatives of the judgment debtor on record, at any time. Of course, in case of death of judgment-debtor, the court can fix a reasonable time for the said purpose and if the decree holder does not file an application for the aforesaid purpose, the Court can dismiss the execution petition for default. But in any event the execution petition cannot be dismissed as abated. Alternatively, it is also open to the decree holder's legal representatives, to file a fresh execution petition in case of death of the decree holder; OR, in case of death of the judgment debtor, the decree holder can file a fresh execution petition impleading the legal representatives of the judgment debtor; such a fresh execution petition, if filed, is, in law, only a continuation of the pending execution petition - the one which was filed in time by the decree holder initially. This is the position under the Code of Civil Procedure.” 9. In F.A.C.T.Manager's Staff House Construction Co-operative Society v. Karthiyani Unni (2011 (2) KLT 248), O.P.(C) NO.703 OF 2010 :: 9 :: relying on the decision of the Supreme Court in V.Uthirapathi v. Ashrab Ali (AIR 1998 SC 1168), it was held thus: “8. Rules 2, 3 and 4 of O.XXII deal with instances where the plaintiff or defendant, as the case may be, dies. R.1 of O.XXII provides that the death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives. R.3 provides for substituting the legal representatives of a deceased plaintiff. R.4 of O.XXII provides for the procedure in case of death of one of several defendants or of sole defendant. R.2 of O.XXII provides for recording the legal representative of the plaintiff or defendant, who is already on record. R.12 of O.XXII provides that nothing in Rules 3, 4 and 8 shall apply to proceedings in execution of a decree or order. The contention of the petitioner is that in view of R.12, R.3 has no application and therefore the legal representatives of the decree holder/petitioner in the execution cannot come on record. This submission, to my mind, is without substance. The meaning of R.12 is that there would be no abatement of the execution proceedings in case the legal representatives of the deceased petitioner are not impleaded within time. Article 120 of the Limitation Act provides for a period of 90 days to implead the legal O.P.(C) NO.703 OF 2010 :: 10 :: representatives of a deceased party. Article 121 provides a period of limitation of 60 days to set aside the abatement. Section 5 of the Limitation Act applies for condoning the delay in setting aside the abatement. These provisions relating to suits and appeals do not apply to execution proceedings. In view of R.12 of O.XXII, there can be no abatement of the execution proceedings on the death of the petitioner or the respondent in the execution petition. If there is no abatement, there is no question of prescribing a period of limitation for impleading the legal representatives or setting aside abatement. For the same reason, there can be no question of delay in setting aside abatement also. In the result, in an Execution Petition, the legal representatives of the deceased petitioner would be entitled to come on record at any time, provided, it is within the period of limitation of executing the decree. Likewise, the legal representatives of the deceased respondent in the execution petition (judgment debtor) can be impleaded even after the expiry of the period of 90 days as provided under Article 120 of the Limitation Act. The execution petition can be proceeded with against the legal representatives at any time provided it is within the period of limitation provided under the Limitation Act.” O.P.(C) NO.703 OF 2010 :: 11 :: 10. A question would arise whether Rule 12 of Order XXII of the Code of Civil Procedure would apply to an application under Rule 97 of Order XXI of the Code of Civil Procedure. The expression used in Rule 12 of Order XXII is “proceedings in execution”. An application under Rule 97 of Order XXI of the Code of Civil Procedure is also a proceeding in execution. It is true that an application under Rule 97 of Order XXI has to be dealt with in the manner provided under Rule 101 therein. Rule 101 of Order XXI of the Code of Civil Procedure provides that all questions (including questions relating to right, title or interest in the property) arising between the parties to a proceeding on an application under Rule 97 or Rule 99 shall be determined by the Court dealing with the application and not by a separate suit. For the purpose of deciding the questions as provided under Rule 101, the executing court shall be deemed to have jurisdiction. Rule 98 of Order XXI CPC provides for orders to be passed after adjudication of an application under Rule 97. Rule 103 states that where any application has been adjudicated upon under Rule 98, the order thereon shall have the same force and be subject to the same conditions as to an appeal or otherwise as O.P.(C) NO.703 OF 2010 :: 12 :: if it were a decree. Though the questions to be decided in an application under Rule 97 of Order XXI CPC are like the trial of issues in a suit and though the order passed thereon is treated as a decree for the purpose of appeal, nevertheless the proceedings under Rule 97 are proceedings in execution. The executing court is given the power to decide the questions referred to in Rule 101 by a deeming fiction as provided therein. Likewise, though the order passed under Rule 98 of Order XXI CPC is not a decree as such, it shall be treated as having the same force of a decree for the purpose of appeal. That does not mean that the proceedings under Rule 97 are not proceedings in execution. The nature and character of the proceedings would not be changed and the power is given to the executing court to decide all questions referred to in Rule 101 only for the purpose of providing a finality to the disputed questions in the execution proceeding itself. In view of this position of law, there can be no doubt that Rule 12 of Order XXII of the Code of Civil Procedure would apply to a proceeding under Rule 97 of Order XXI of the Code of Civil Procedure as well. If so, on the death of a respondent in an O.P.(C) NO.703 OF 2010 :: 13 :: application under Rule 97, there would be no abatement under Rule 4 of Order XXII of the Code of Civil Procedure. 11. As stated earlier, the remedy of the petitioner is to make necessary application before the executing court. The Civil Revision Petition is disposed of as above. (K.T.SANKARAN) Judge ahz/