An application for execution of a decree made by the heirs and legal representatives of a deceased decree holder, in continuation of the execution proceedings initiated by the deceased decree holder, is not a fresh application barred by limitation and is not subject to the provisions of Section 214 of the Indian Succession Act.

( 1 ) AN application for execution of a money decree dated 30th January. 1953 by attachment and sale of the defendant's sixteen annas share in the divided portion of premises No. 30, Maharshi Debendra Road, Calcutta, has been moved before me by the heirs and legal representatives of the plaintiff-decree holder, one Benode Chatterjee since deceased. The application has been made on Tabular Statement affirmed by the said plaintiff-decree-holder on 27th January, 1965. It appears from endorsement in the Tabular Statement that direction was given by the learned master on the same date for issue of notice under Order XXI Rule 22 (1) (a) of the Code of Civil Procedure. The application was made within 12 years when the default in making the payment directed in the decree in respect of which execution, is sought took place i. e. , 28th February 1953.

( 2 ) THE Notice under Order XXI. Rule 22 (11 (a) was not issued and the plaintiff-decree-holder did not take any step. On April 22. 1965 pending the said execution the plaintiff decree-holder died leaving him surviving Sm. Basanti Chatterjee, widow and Parthe Chatterjee, son as Ms heirs and legal representatives. The said heirs and legal representatives in November 1965 made an ex parte application in this Court whereupon on 9th December. 1965 Order was made by Masud. J. , recording the death of the plaintiff-decree-holder amending the register of the suit by substituting in the cause title thereof the names, address and descriptions of the applicants, for issue of usual Notice under Order XXI, Rule 22 (1) (a) and Notice under Order XXI, Rule 41 of the Code of Civil Procedure. The notice under Order XXI, Rule 41 of the Code was not issued nor did the applicants take any step under the said order.

( 3 ) A notice under Order XXI, Rule 22 (1) (a) of the Code of Civil Procedure dated 27th January, 1965 was issued by the Court on 22nd March, 1972 and was served on the defendant-judgment-debtor on 24th May, 1972.

( 4 ) THE applicants, the said heirs and legal representatives of the plaintiff-decree-holder now proceed with execution of the said decree by the said Tabular Statement affirmed by the plaintiff-decree-holder on 27th January, 1965, as herein above stated. The application is contested on behalf of the judgment-debtor on the grounds that, (1) the applicants having made an application in November, 1965, obtained order on 9th December 1965 inter alia for issue of Notice under Order XXI, Rule 41 of the Code of Civil Procedure on the judgment-debtor, which being substantially a different relief from what was originally prayed for in the pending application, thereby made a fresh application beyond 12 years from the date of the decree i. e. , 30th January, 1965, or from the date of default in payment directed by the decree i. e. , 28th February, 1965. Therefore the original application was deemed to be finally disposed of and the aforesaid fresh application was made beyond the prescribed time of 12 years is not maintainable relying upon a decision. The Counsel for the applicants made faulty arguments in pressing that by the decree, the decree-holder was directed not to execute the decree for 18 months from the date of the decree i. e. , 30th January, 1953. The said period of 18 months according to him should be excluded in computing the time for executing the decree. The argument is patently incorrect because the said restraint on the decree-holder was conditional upon certain payments and in default of the payment as directed in the decree within a month from the date of decree, the decree-holder was entitled to execute the decree forthwith. There was default and the decree became executable after 28th February, 1953. (2) Secondly, the Counsel for the judgment-debtor submitted that the Court should not proceed upon application of the applicants claiming on succession to execute against a debtor of a deceased person a decree for payment of his debt except on production of