JUDGMENT :

1. Heard Mr. Jagnnath Singh, learned counsel for the petitioner.

2. This application under Article 227 of the Constitution of India has been filed by the petitioner for setting aside the order dated 19.09.2018 passed by the learned Munsif, Gopalganj in Execution Case No.02/ 2002, whereby the objection raised by the son of the judgment-debtor, Late Ramadhar Prasad Yadav, in the execution proceeding, has been rejected.

3. Learned counsel appearing for the petitioner submitted that the learned Munsif grossly erred in law in rejecting the application dated 18.08.2018 filed by the petitioner wherein it was pleaded by the petitioner that the execution proceeding should be dismissed due to the death of the judgment-debtor. According to him, an execution proceeding cannot run against a dead person. Since all the three judgment-debtors had died and their legal representatives were not brought on record by the decree-holder, the learned Munsif ought to have dismissed the execution proceeding. He argued that the order impugned is illegal, unjust and perverse. Hence, the same is liable to be set aside.

4. The facts of the case, in brief, are that the decree-holder (Respondent 2nd Set) had filed an execution case for execution of a decree dated 23.11.1986 passed in Title Suit No.119 of 1972 for delivery of possession by appointing a pleader knowing Survey Commissioner against Khata No.221, Plot No.1028, against the father of the petitioner, namely, Ramadhar Prasad Yadav and two other judgment-debtors, namely, Asharfi Sah and Smt. Ishee Sana (Respondents 2nd Set).

5. The petitioner being the son of judgment-debtor Ramadhar Prasad Yadav after coming to know about the pendency of Execution Case No.02 of 2002 filed a petition in the Court of Munsif, Gopalganj on 18.08.2018 stating therein that he is the son of judgment-debtor namely, Ramadhar Prasad Yadav, who had died on 06.07.2012. The judgment-debtor no.2 Asharfi Sah died in 2015 and his wife, the judgment-debtor no.3, namely, Smt. Ishee Sana also died in the Year 2013, but the legal representatives have not been brought on record either by filing fresh execution case or impleading them in the pending execution proceeding.

6. On the aforesaid grounds, a prayer was made to dismiss the ongoing execution proceeding against the deceased judgment-debtors.

7. Having heard the parties, the learned Munsif, vide impugned order dated 19.09.2018, dismissed the petition filed by the petitioner dated 18.08.2018.

8. Being aggrieved by the impugned order dated 19.09.2018, the instant application under Article 227 of the Constitution of India has been filed by the petitioner before this Court.

9. The only question involved in the present application is whether a decree-holder can proceed with the execution case in spite of death of the judgment-debtor without impleading the legal representatives of the judgment-debtor.

10. Section-50 (1) of the Code of Civil Procedure (for short ‘C.P.C.’) provides that “Where a judgment-debtor dies before the decree has been fully satisfied, the holder of the decree may apply to the Court which passed it to execute the same against the legal representative of the deceased.”

11. Section-50 (2) of the C.P.C. provides that “Where the decree is executed against such legal representative, he shall be liable only to the extent of the property of the deceased which has come to his hands and has not been duly disposed of; and, for the purpose of ascertaining such liability, the Court executing the decree may, of its own motion or on the application of the decree-holder, compel such legal representative to produce such accounts as it thinks fit.”

12. Section-2 (11) of the C.P.C. defines the term “legal representative” to mean a person, who in law represents the estate of a deceased person, and includes any person, who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character, the person on whom the estate devolves on the death of th