# Jamuna Prasad v. Thakur Ji Mahamaya Devi Virajman Temple & Ors - **Citation:** (2016) 7 ILRA 988 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2016-07-28 - **Bench:** Pankaj Mithal - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jamuna-prasad-v-thakur-ji-mahamaya-devi-virajman-temple-ors-44098 - **Pages:** 4 ## Headnote Civil Law - Decree - S.C.C. suit - Execution - Judgement debtor Ramdei died - Heirs and legal representatives - Substitution - Application - Order dated 05.03.2016 - Revision dismissed 27.05.2016 - Substitution application moved long after her death - Condonation of delay - Execution stood abated - Rules 3 and 4 Order XXII C.P.C. - Rule 12 Order XXII C.P.C. - Proceedings in execution of a decree - Not applicable - Execution proceedings would not abate - Heirs and legal representatives not brought on record within time - Filing of execution proceedings in time - Death of decree-holder/judgement debtor - No abatement - Remain pending - Brought on record at any time - No time limit - Proceedings would not abate - Remain 7 All. Jamuna Prasad Vs Thakur Ji Mahamaya Devi Virajman Temple & Ors. 989 pending - No provision prescribing time - No necessity for moving any application for seeking condonation of delay - Petition dismissed. The decree passed in S.C.C. suit has been put in execution against one of the judgement debtors Ramdei.The petitioner is one of the sons of the aforesaid judgement debtor Ramdei.During the pendency of the above execution proceedings as the judgement debtor Ramdei died, the decree holders applied for bringing on record her heirs and legal representatives including the petitioner. The said application has been allowed by the order dated 05.03.2016 and the revision of the petitioner preferred against the same has been dismissed on 27.05.2016.The petitioner has come up in this petition against the above orders dated 05.03.2016 and 27.05.2016.(Para 2-5) In challenging the above orders, the argument is that the substitution application in respect of the deceased judgement debtor Ramdei was moved long after her death without an application for seeking condonation of delay in filing it but even then the court has permitted substitution.It is not the case of the petitioner that he is not the son or the heir of the deceased judgement debtor and is not liable to be substituted in her place.Once the above aspect of the matter is not disputed and the petitioner has rightly been substituted, he suffers no prejudice except for contending that as the delay in fling the substitution application was not condoned, the execution stood abated and cannot proceed against him.(Para 6-8) Held: (Paras-12-16) It can be explained in a different manner so as to mean that if after the filing of a execution proceedings in time, either the decree-holder or the judgement debtor dies and their legal representatives do not come on record, there would be no abatement of the execution proceedings. If there is no abatement of the execution proceedings they would remain pending on record of the court and as and when the heirs or legal representatives of the deceased party are brought on record, the execution would proceed further. In view of the aforesaid position in law the execution once started within time would not abate due to death o ## Text 988 INDIAN LAW REPORTS ALLAHABAD SERIES is not the case that the petitioner had committed any breach of the terms and conditions of the bail. The proper course, for the Magistrate, therefore, would have been to summon the petitioner and to hear him on the question of bail in view of the additional accusation of a more serious offence, i.e., of an offence punishable under Section 413 of the IPC. 7. In the circumstances, the order issuing non-bailable warrant is not just and proper. 8. The learned counsel for the petitioner submits before me that the petitioner is ready to appear before the Magistrate. 9. In my opinion, the petitioner should be allowed to remain on the same bail, unless the Magistrate thinks it necessary to cancel the bail granted to him in view of the addition of a new charge. It is made clear that in a such case the Magistrate shall issue a notice to the petitioner and give him an opportunity of being heard against the cancellation of bail; and then pass an order in accordance with the law. 10. The petition is disposed of in the aforesaid terms. -------- ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 28.07.2016 BEFORE THE HON'BLE PANKAJ MITHAL, J. Matters Under Article 227 No.- 4469 Of 2016 Jamuna Prasad ...Petitioner Versus Thakur Ji Mahamaya Devi Virajman Temple & Ors. ...Respondents Counsel for the Petitioner: Jainendra Kumar Mishra Counsel for the Respondents: S.C. Civil Law - Decree - S.C.C. suit - Execution - Judgement debtor Ramdei died - Heirs and legal representatives - Substitution - Application - Order dated 05.03.2016 - Revision dismissed 27.05.2016 - Substitution application moved long after her death - Condonation of delay - Execution stood abated - Rules 3 and 4 Order XXII C.P.C. - Rule 12 Order XXII C.P.C. - Proceedings in execution of a decree - Not applicable - Execution proceedings would not abate - Heirs and legal representatives not brought on record within time - Filing of execution proceedings in time - Death of decree-holder/judgement debtor - No abatement - Remain pending - Brought on record at any time - No time limit - Proceedings would not abate - Remain 7 All. Jamuna Prasad Vs Thakur Ji Mahamaya Devi Virajman Temple & Ors. 989 pending - No provision prescribing time - No necessity for moving any application for seeking condonation of delay - Petition dismissed. The decree passed in S.C.C. suit has been put in execution against one of the judgement debtors Ramdei.The petitioner is one of the sons of the aforesaid judgement debtor Ramdei.During the pendency of the above execution proceedings as the judgement debtor Ramdei died, the decree holders applied for bringing on record her heirs and legal representatives including the petitioner. The said application has been allowed by the order dated 05.03.2016 and the revision of the petitioner preferred against the same has been dismissed on 27.05.2016.The petitioner has come up in this petition against the above orders dated 05.03.2016 and 27.05.2016.(Para 2-5) In challenging the above orders, the argument is that the substitution application in respect of the deceased judgement debtor Ramdei was moved long after her death without an application for seeking condonation of delay in filing it but even then the court has permitted substitution.It is not the case of the petitioner that he is not the son or the heir of the deceased judgement debtor and is not liable to be substituted in her place.Once the above aspect of the matter is not disputed and the petitioner has rightly been substituted, he suffers no prejudice except for contending that as the delay in fling the substitution application was not condoned, the execution stood abated and cannot proceed against him.(Para 6-8) Held: (Paras-12-16) It can be explained in a different manner so as to mean that if after the filing of a execution proceedings in time, either the decree-holder or the judgement debtor dies and their legal representatives do not come on record, there would be no abatement of the execution proceedings. If there is no abatement of the execution proceedings they would remain pending on record of the court and as and when the heirs or legal representatives of the deceased party are brought on record, the execution would proceed further. In view of the aforesaid position in law the execution once started within time would not abate due to death of a party or for want of substitution of the heirs and legal representatives rather it would remain pending with no progress until and unless someone as the heir or legal representative of the party comes on record and starts pursuing the same. This is also the opinion of the Supreme Court in (1998) 3 Supreme Court Cases 149 V. Uthirapathi Vs. Ashrab Ali and others wherein it has been held that no time limit is prescribed for bringing on record the heirs and legal representatives of the parties in execution and therefore the proceedings would not abate and remain pending leaving it open in case of death of decree holder/judgement debtor to bring on record the heirs and legal representatives at any time. In view of the aforesaid facts and circumstances, as the provisions of Rule 3 and 4 of Order XXII C.P.C. are not applicable to execution proceedings and there is no provision prescribing time for bringing on record the heirs and legal representatives of any deceased party to the execution or for the abatement of the proceedings, there was no necessity for moving any application for seeking condonation of delay for the purposes of substitution and the petitioner could have been brought on record at any time, notwithstanding the time gap between the death of the party and the filing of the application. Accordingly, I find no merit in this petition and the same is dismissed with no order as to costs. Case Law discussed: 1.Uthirapathi Vs. Ashrab Ali and others (1998) 3 Supreme Court Cases 149 V. (Para 14) 990 INDIAN LAW REPORTS ALLAHABAD SERIES (Delivered by Hon'ble Pankaj Mithal, J.) 1. Heard Sri J.K. Mishra, learned counsel for the petitioner. 2. The decree passed in S.C.C. suit has been put in execution against one of the judgement debtors Ramdei. 3. The petitioner is one of the sons of the aforesaid judgement debtor Ramdei. 4. During the pendency of the above execution proceedings as the judgement debtor Ramdei died, the decree holders applied for bringing on record her heirs and legal representatives including the petitioner. The said application has been allowed by the order dated 05.03.2016 and the revision of the petitioner preferred against the same has been dismissed on 27.05.2016. 5. The petitioner has come up in this petition against the above orders dated 05.03.2016 and 27.05.2016. 6. In challenging the above orders, the argument is that the substitution application in respect of the deceased judgement debtor Ramdei was moved long after her death without an application for seeking condonation of delay in filing it but even then the court has permitted substitution. 7. It is not the case of the petitioner that he is not the son or the heir of the deceased judgement debtor and is not liable to be substituted in her place. 8. Once the above aspect of the matter is not disputed and the petitioner has rightly been substituted, he suffers no prejudice except for contending that as the delay in fling the substitution application was not condoned, the execution stood abated and cannot proceed against him. 9. The above contention or suggestion has no legal legs to stand. 10. The procedure of substitution of the parties in the event of death of either the plaintiff or the defendant or the appellant or the respondent as the case may be is provided under Rules 3 and 4 of Order XXII C.P.C. which also provides if substitution is not carried out within time, the proceedings of the suit or the appeal as the case may be shall abate. 11. Rule 12 of Order XXII C.P.C. inter alia lays down that nothing in Rules 3 and 4 of Order XXII shall apply to proceedings in execution of a decree. In other words, the provisions of Rules 3 and 4 of Order XXII are not applicable to execution proceedings meaning thereby that the execution proceedings would not abate if the heirs and legal representatives of the deceased party to the execution proceedings are not brought on record within the time, if any, specified. 7 All. V.S. Mittal Vs State Of U.P. & Anr. 991 12. It can be explained in a different manner so as to mean that if after the filing of a execution proceedings in time, either the decree-holder or the judgement debtor dies and their legal representatives do not come on record, there would be no abatement of the execution proceedings. If there is no abatement of the execution proceedings they would remain pending on record of the court and as and when the heirs or legal representatives of the deceased party are brought on record, the execution would proceed further. 13. In view of the aforesaid position in law the execution once started within time would not abate due to death of a party or for want of substitution of the heirs and legal representatives rather it would remain pending with no progress until and unless someone as the heir or legal representative of the party comes on record and starts pursuing the same. 14. This is also the opinion of the Supreme Court in (1998) 3 Supreme Court Cases 149 V. Uthirapathi Vs. Ashrab Ali and others wherein it has been held that no time limit is prescribed for bringing on record the heirs and legal representatives of the parties in execution and therefore the proceedings would not abate and remain pending leaving it open in case of death of decree holder/judgement debtor to bring on record the heirs and legal representatives at any time. 15. In view of the aforesaid facts and circumstances, as the provisions of Rule 3 and 4 of Order XXII C.P.C. are not applicable to execution proceedings and there is no provision prescribing time for bringing on record the heirs and legal representatives of any deceased party to the execution or for the abatement of the proceedings, there was no necessity for moving any application for seeking condonation of delay for the purposes of substitution and the petitioner could have been brought on record at any time, notwithstanding the time gap between the death of the party and the filing of the application. 16. Accordingly, I find no merit in this petition and the same is dismissed with no order as to costs. ----------- REVISIONAL JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 11.07.2016 BEFORE THE HON'BLE PRABHAT CHANDRA TRIPATHI, J. Criminal Revision No.- 4617 Of 2011 V.S. Mittal ...Revisionist Versus State Of U.P. & Anr. ...Opposite Parties Counsel for Revisionist: Sri Dharmendra Singhal