The substitution of the legal representatives of a deceased decree-holder in an appeal arising out of an execution proceeding amounts to their addition or substitution in the execution proceeding also.

H.L.Agarwal, J.

1. This Miscellaneous appeal under Sec. 47 of the Cods of Civil Procedure is by one of the judgment-debtors against the orders of the Courts below rejecting his objection for dismissing an execution case in the following circumstances.

2. Respondent No. 1 Kanhaiya Lal Jain and one Misri Lal jain obtained a decree for eviction of the appellant and others from a piece of land on which they are running a petrol pump of Burmah Shell Company. The decree was put in execution in Execution Case No. 9 of 1960 in the Court of the Munsif, Hazaribagh, and delivery of possession was purported to have been effected by the Nazir on 6-8-1961. Three miscellaneous cases, namely, Nos. 83, 84 and 85 of 1961 were filed on various grounds by the judgment-debtor, which were all dismissed. Several years thereafter on the 15th March, 1966, the decree-holders again approached the Executing Court for issue of a fresh writ of delivery of possession. On this application by the decree-holders, objections were put in by the judgment-debtors and again three miscellaneous cases Nos. 36, 37 and 38 of 1966 were registered. Their main objection was that the execution case having been dismissed after effecting delivery of possession, the application of the decree-holders for issue of fresh writ of delivery of possession was incompetent and not maintainable. The Executing Court, however, dismissed all the Miscellaneous cases. Thereafter only one of the judgment-debtors preferred an appeal before the District Judge, Hazaribagh, which was registered as Miscellaneous Appeal No. 19 of 1966. This appeal was allowed. The decree-holders thereupon came up to this court in Miscellaneous Appeal No. 346 of 1966. This court allowed the said appeal on 25-1-1973 rejecting the objection of the judgment debtor and holding that the application filed by the decree holders on 15-3-1966 was maintainable and competent.

3. One of the decree holders, namely Misri Lal Jain died during the pendency of the appeal in the High Court and his heirs were substituted. No steps were, however, taken for bringing the said heirs on the record of the execution proceeding. On 16-2-1973, that is, after, the decision of this court in the aforesaid Miscellaneous Appeal, an application was filed on behalf of decree-holder Kanhaiya Lal Jain for proceeding with the execution case and effecting a fresh delivery of possession. This time fresh objection was taken by judgment-debtor Parma Lal on the ground that the application filed by Kanhaiya Lal Jain alone was not maintainable and was hit by the provision of Rule 15 of Order 21 of the Code of Civil Procedure. This case was registered as Miscellaneous Case No. 37 of 1973. On 1-9-1973, heirs of Misri Lal Jain applied for their addition as parties in the execution proceeding. This prayer was allowed by the Executing Court on 11-9-1973. On the same day, the objection of the judgment-debtor was, however, dismissed. An appeal was taken by him to the District Judge, but the same has been also dismissed and, therefore, the present appeal has been filed by him in this Court.

4. Learned Advocate-General appearing in support of the appeal with reference to Rules 15 and 17 of Order 21 of the Code of Civil Procedure has urged in this court that one of the decree-holders alone, namely, respondent No. 1 Kanhaiya Lal Jain was not entitled to apply in the Executing Court for taking delivery of possession of the property in question and the courts below have committed an apparent error of law in allowing his prayer. Learned Counsel appearing for the decree-holder respondent however has made a submission that the substitution of the heirs of Misri Lal Jain in the appeal before this Court arising out of the execution proceeding would amount to their addition or substitution, as the case may be, in the execution proceeding also, and, alternatively that the application made by respondent No. 1 Kanhaiya Lal Jain on 16-2-1973 was not made on his own behalf,