1. An interesting question of some significance in execution of Court decree arises for consideration in this Civil Revision Petition filed under Article 227 of the Constitution of India. The following brief background of the case helps for better appreciation of the point for consideration.

2. Respondent No.1 filed a suit, being O.S.No.95 of 1997, on the file of the Court of the Additional Senior Civil Judge, Eluru. The said suit for specific performance of agreement of sale in respect of a Cinema Theatre and vacant land at Eluru was partly decreed on 28.09.2001. Defendants, namely, Thota Krishnaveni - mother of petitioners herein, Bhimana Satyanarayanamma, Boddu Veerayamma (respondent No.3 herein) and Vyasam Rama Devi were directed to return the sale consideration of Rs.51,116/- with interest at 12% per annum from the date of the suit till date of the decree and at the rate of 6% per annum from the date of decree till payment. Respondent No.1 filed E.P.No.16 of 2002 for execution of the decree for attachment and sale of the Cinema Theatre. Cinema Theatre was attached. E.P was dismissed on 03.04.2003 for non payment of batta and service of notice on the Judgment Debtor No.4 (mother of petitioners). The Decree Holder then filed E.A.No.1031 of 2006 under Order XXII Rule 4 of the Code of Civil Procedure, 1908 (CPC), to bring the petitioners as legal representatives of deceased Judgment Debtor No.4. By impugned order dated 28.03.2008, the same was allowed, aggrieved by which, the present Civil Revision Petition is filed.

3. The learned Counsel for the petitioners contends that when the E.P was dismissed against Judgment Debtor No.4, E.P was not pending as against Judgment Debtor No.4. Therefore, the same having become final the petitioners cannot be brought on record as legal representatives of the deceased Judgment Debtor No.4. He nextly contends that E.P abated as against Judgment Debtor No.4 and therefore without there being an application to set aside the abatement or without there being application to condone the delay in filing such application the petitioners cannot be brought on record as legal representatives of the deceased Judgment Debtor No.4.

4. This Court ordered notice to respondents. First respondent (Decree Holder) appears through the Counsel. As notices could not be served on respondent Nos.2 to 4/Judgment Debtor Nos.1 to 3, after taking permission, learned Counsel for the petitioners has taken out notice to them by substituted service by publishing the notice in ‘Andhra Jyothi’, Eluru Edition, dated 09.01.2010. In spite of service of notice, none appears and they are called absent, and set ex parte. Learned Counsel for the first respondent (Decree Holder) submits that as per Section 50 read with Order XXII Rule 4 of CPC, the E.P can be proceeded with against legal representatives of the deceased.

5. In view of the rival contentions, the point that arises for consideration is whether the executing Court can proceed with the execution petition against the legal representatives of one of the judgment debtors when the decree is against all the Judgment Debtors.

6. The undisputed facts are as follows. First respondent instituted the suit for specific performance of agreement of sale. Alleging that the defendants including mother of the petitioners executed agreement of sale on 30.07.1995 agreeing to sell Gajalakshmi Picture Palace for Rs.5,50,000/-, that vendee paid Rs.51,116/- and that the vendors agreed to register the sale deed on or before 31.12.1995 after receiving the balance sale consideration. The first defendant, namely Bhimana Satyanarayanamma, opposed the suit alleging that vendors were always ready and willing to perform their part of the contract and that it is vendee who failed to perform his part of the contract. After trial the Court of the Additional Senior Civil Judge, Eluru, recorded a finding that it is the purchaser who was not ready and willing to perform his part of the contract, an