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1952 DIGILAW 21 (KER)

Kunjipennu Kallayani v. Raman Kochu

1952-03-03

P.K.SUBRAMONIA IYER

body1952
JUDGMENT : The 19th defendant is the appellant in these second appeals. 2. Kurien Chacko, the father of the respondents obtained on 22.10.1111 two decrees in O.S. 48 and 49 of 1103 on the file of the Meenachil Munsiff’s Court for delivery of khas possession of the immovable properties scheduled thereto against the defendants after removing certain buildings and trees erected and planted by them. On 25.12.1112 he applied for execution of both the decrees. Pending these execution petitions, he died. His counsel reported the fact of his death and on 2.2.1113 made an endorsement to that effect on the record. On 4.2.1113 the court ordered “Apply to implead the heirs of plaintiff” and on 14.2.1113 the court ordered “Form struck off. No costs”. On 19.10.1120 the sons and legal representatives of the deceased decree-holder applied for execution stating that the aforesaid orders dated 14.2.1113 are merely ministerial, that the execution petitions filed by their father were still pending, available to be continued by them and praying for such continuance and for grant of the reliefs under the decrees to them as legal representatives. 3. Various objections were raised by the defendants which were all found against by both the courts below. The matter was dealt with together in the same order in both the courts below as the points and parties were same. The two points urged before me in second appeal are that the execution petition dated 19.10.1120 is barred by limitation and that if the execution petition be not barred, the appellant 19th defendant should be given the value of improvements claimed by him. It is contended that the execution petitions filed by the deceased decree-holder are not available to be continued by his legal representatives because they had been finally disposed of on 14.2.1113. It is further contended that in any event the reliefs under those petitions must be deemed to have been abandoned on account of the long lapse of time between those applications and the present one. The execution application does note abate on the death of the applicant decree-holder and it is competent for his legal representatives to come in at any time when the petition is pending and seek to prosecute it. O. XXII of the Code of Civil Procedure which provides for abatement of suits excludes by R. 12, execution applications from the operation of Rr. O. XXII of the Code of Civil Procedure which provides for abatement of suits excludes by R. 12, execution applications from the operation of Rr. 3, 4 and 8 of that Order, R. 1 of which runs thus:- “The death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives”. S. 146 of the Code would authorise the continuation of any proceeding started by the deceased, by his legal representatives. Whatever conflict of judicial opinion there was and there may still be as regards the power of the court to permit continuance of a proceeding started by a deceased at the instance of his legal representatives, whether it is in pursuance of an express power in that behalf vested in the court or it is pursuant to any inherent power of the court and as regards the precise details of the process by which such continuance must be achieved, whether by substitution in the original proceedings or by some separate proceedings, opinion is agreed that a proceeding started by a deceased can be continued by his legal representatives. It may be mentioned that the question as to the propriety of the procedure sought to be pursued in this case was not canvassed before me. I do not therefore refer to or discuss the aforesaid conflict as to the procedure. 4. There is no default on the part of the decree-holder in the matter of prosecution of the execution petition. Death of the applicant cannot be regarded as a default on his part nor did the court regard it as such because on 4.2.1113 that is, two days after the court was intimated of the decree-holder’s death, the Court directed, by the order already read, the impleading of his heirs. Those heirs were not on record. The only parties on record then were the defendants. The order should therefore be taken as having been directed to the defendants. Whether it was right that the court should have directed the defendants to implead the legal representatives of the deceased decree-holder need not be discussed. It is enough to say that the order could not have been addressed to persons who were not before court. Non-compliance with that order cannot therefore be attributed as a default on the part of the legal representatives of the decree-holder. It is enough to say that the order could not have been addressed to persons who were not before court. Non-compliance with that order cannot therefore be attributed as a default on the part of the legal representatives of the decree-holder. If at all, the default was of the defendants who cannot be allowed to obtain any advantage therefrom. There was not nor could there have been, any default on the part of the legal representatives in the matter of non-compliance with that order as it could not have been directed to them as they were not on record then. The order passed on 14.2.1113 could not therefore be a final order. If it is not, the application on which the order was passed is pending notwithstanding that order and is available to be continued by the legal representatives of the deceased decree-holder. It is not necessary to survey the authorities upon this question. It would be sufficient to refer to the decision of a Full Bench of the Madras High Court in Venkatachalam Chetti v. Ramaswamy Servai (I.L.R. 55 Mad. 352) over-ruling the previous decision of the same court in Palaniappa Chettiar v. Valliammai Achi (I.L.R. 50 Madras 1). Reference may also be made to F.A. McNaught v. Musammat Saraswati Thakurain (I.L.R. 13 Patna. 777), Ananda Prassad v. Sushil Kumar (46 C.W.N. 326) and Koypathodi Moidin Kutty v. A.K. Doraswamy Aiyar (A.I.R. 1952 Madras 51). I therefore hold that there is no bar of limitation in this case as the original application which was within time is still pending and available to be continued by the respondents. 5. The second point urged by the learned counsel for the appellant is that the prior execution petition must be deemed to have been abandoned on account of the long lapse of time. Reliance is placed on the decision of the Privy Council in Puddomonee Dosse v. Roy Muthoorananath Chowdhry (20 W.R. 133). The facts of that case were peculiar. Certain properties were attached in execution of a decree. When that attachment was subsisting a conveyance was made by the judgment-debtors. Afterwards the execution petition was struck off. There was afterwards a mortgage of the properties in favour of another person. Thereafter the decree-holder applied for an obtained another attachment over the properties. The mortgagee intervened and objected to the attachment as free from encumbrance relying upon the mortgage in her favour. Afterwards the execution petition was struck off. There was afterwards a mortgage of the properties in favour of another person. Thereafter the decree-holder applied for an obtained another attachment over the properties. The mortgagee intervened and objected to the attachment as free from encumbrance relying upon the mortgage in her favour. The objection was upheld and the attachment was confined to the equity of redemption. The equity of redemption was afterwards sold in court auction and purchased by the aforesaid mortgagee. The question was whether the purchaser could depend upon the first attachment that there was and claim that the alienation pending it was void and seek delivery of the properties on that basis from the purchaser. The Privy Council said that having herself treating the first attachment as non-existent taken a mortgage and got it upheld by the court in her objection and having purchased only the equity of redemption subject to that mortgage, she would be estopped from having the properties free from encumbrance which would be the result of allowing her to recover possession of the properties from the alienee though pending the first attachment. Their Lordships proceeded further to say that in view of the long lapse of time that there was between the first and the second attachments which was unexplained and the party levying the attachment being the same throughout it must be considered under the special circumstances of the case that that party had abandoned the rights under the first attachment and was content to have the second which was enforced and which culminated in the court auction sale. That decision has obviously no application to the facts of this case. Here the decree-holder did apply for the reliefs granted to him by the decree though he did not live long enough to realise the fruits thereof. Law allows the legal representatives to come in and continue such an application so long as it is pending. In this case nothing happened to interrupt its pendency. That being so, there is nothing standing in the way of the respondents who are the legal representatives of the deceased from continuing that petition though they may not have come soon after the death of the decree-holder. 6. The next point urged on behalf of the appellant is that his client should have been given the value of improvements effected by him after the decree. 6. The next point urged on behalf of the appellant is that his client should have been given the value of improvements effected by him after the decree. The decree directs removal of the buildings and trees for which value had been claimed by the defendants in the suit and grants besides an injunction restraining the defendants from doing such or similar operations on the properties. It is that decree that is being executed. It is strange that on the face of such a decree a claim is made for value of improvements in second appeal when the judgments of the courts below show that the claim was not seriously pressed before them. The erstwhile Travancore High Court held in a Full Bench in Lekshmi Parukutty Amma v. Subhadra Atchuthan (1948 T.L.R. 209) that improvements effected after the decree are not liable to be paid for. That question has, however, now been referred to a Full Bench of this Court. The claim made in these second appeals can only be attributed to a desire to avail of the decision of the Full Bench should that happen to be contrary to that of the Travancore High Court. Every litigant is entitled to have the benefit of the declaration of the law made by the Court but in this case the claim is altogether unsustainable as it is obvious from the aforesaid facts and I do not consider it just, in the circumstances, to permit the appellant to agitate the claim once voluntarily given up in the courts below, afresh in second appeal. 7. Both the second appeals should, therefore, be dismissed with costs. Dismissed.