ORDER :

Sanjay K. Agrawal, J.

1. The question for consideration is whether during the pendency of regular execution proceeding filed on the basis of a decree or order of civil court, if the decree-holder dies, execution petition can be dismissed for want of bringing their representatives on record?

2. Mansha Ram (decree-holder) of Civil Suit No. 8A/08 (Mansha Ram Vs. Koduram and others) filed execution petition before the Executing Court. Decree-holder Mansha Ram died on 19.10.2017 and his legal representatives i.e. petitioners filed an application under Order 22 Rule 3 of the CPC for bringing legal representatives on record. That application has been rejected by the Executing Court holding that by virtue of Order 22 Rule 12 of the CPC, provisions contained in Order 22 Rule 3 and 4 of the CPC are not applicable in execution, feeling aggrieved against that order, this writ petition has been preferred.

3. Mr. P. Chetan Kumar, learned counsel for the petitioners would submit that since the provisions contained in Order 22 Rule 3 of the CPC are not applicable, the petitioners were at liberty to file an application for bringing legal representatives on record at any time and application could have been treated under Section 151 of the CPC and could have been allowed, but it could not have been rejected by the Executing Court.

4. I have heard learned counsel for the, petitioners and perused the impugned order.

5. Order 22 Rule 12 of the CPC states as under:-

"12. Application of Order to proceedings.-Nothing in Rules 3, 4 and 8 shall apply to proceedings in execution of a decree or order."

6. Admittedly, by virtue of Order 22 Rule 12 of the CPC, the provisions contained in Order 22 Rule 3, 4 and 8 of the CPC are not applicable to execution of a decree.

7. The Supreme Court in the matter of V. Uthirapathi Vs. Ashrab Ali and others (1998) 1 SCC 148 considered the question and framed following question in para 10 of the report:

"10. If during the pendency of a regular execution proceeding filed on the basis of a decree or order of a civil court, the decree-holder or the judgment-debtor dies and his legal representatives are not brought on record within ninety days, can the civil court dismiss the execution petition as abated?"

It has been held that in the event of execution proceeding, execution petition cannot be dismissed as abated and held as under:-

"15. It is clear, therefore, that if after the filing of an execution petition in time, the decree-holder dies and his legal representatives do not come on record - or the judgment-debtor dies and his legal representatives are not brought on record/then there is no abatement of the execution petition. If there is no abatement, the position in the eye of law is that the execution petition remains pending on the file of the execution Court. If it remains pending and if no time-limit is prescribed to bring the legal representatives on record in execution proceedings, it is open in case of death of the decree- holder, for his legal representative to come on record at any time. The execution application cannot even be dismissed for default behind the back of the decree-holder's legal representatives. In case of death of the judgment-debtor, the decree-holder could file an application to bring the legal representatives of he judgment-debtor on record, at any time. Of course, in case of death of judgment-debtor, the Court can fix a reasonable time for the said purpose and if the decree-holder does not file an application for the aforesaid purpose, the Court can dismiss the execution petition for default. But in any event the execution petition cannot be dismissed as abated. Alternatively, it is also open to the decree-holder's legal representatives, to file a fresh execution petition in case of death of the decree-holder; or, in case of death of the judgment-debtor, the decree- holder can file a fresh execution petition impleading the legal representatives of the judgment-debtor; such a fresh execution pet