2009 Supreme(Guj) 377

2010 (2) GCD 1653 (Guj)
Hon’ble Mr. Justice K.A. Puj
Chandrakant Amrutlal Dayaram & Anr.
Versus
Sureshchandra Vrajlal Chevali & Anr.
Special Civil Application No. 17980 of 2003—Decided on 01/07/2009

Point in Issue :
Whether order issuance of warrant for possession and recovery of decretal amount against deceased judgment debtor sustainable.

Headnote:Head Note :

       Civil Procedure Code, 1908 (Central Act 5 of 1908) — Sections 50, 50(1) — Order 21 Rules 22, 35, 98, 100 and 103 — Bombay Rent Act — Sections 5(11)(c), 29(1) and 29(3) — Decree for possession — Execution application — Filed after the death of original judgment debtor the father of petitioners — Issuance of warrant for possession and recovery of decretal amount — Sustainability — Finding of — In case of death of original judgment debtor if the decree holder want to execute the decree against legal representative of the deceased he is required to make application to the Executive Court to allow him to execute decree against legal representatives of deceased — It however required that decree holder must be aware of the death of the judgment debtor — In the present case there is nothing on record which indicates that decree holder was aware about the death of judgment debtor at the time when execution application was filed or warrant for possession and recovery of decretal amount was obtained — The facts on record shows that petitioner allowed the execution of warrant peacefully and without any protest — Thus, the plaintiff respondents had taken possession of suit property without any objection and without any dispute — The facts on record donot indicate that decree was sought to be executed against legal representative of the deceased the petitioner had remedy under Order 21 Rule 99 of the Code but they did not avail it — Therefore, Court does not see any substance in the petition.

       Held :

       Section 50 of C.P.C. says 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. This section casts a duty on the decree holder to make an application to the Executing Court to allow him to execute decree against the legal representative of the deceased. However, the question arises as to whether the decree holder is aware about the death of the judgment-debtor. There is nothing on record which indicates that the decree holder was aware about the death of the judgment-debtor at the time when the execution petition was filed or at the time when the order regarding issuance of possession warrant and jungam warrant was obtained. It appears from the bailiff report that these facts came to the light only when the possession warrant was sought to be executed. There is a reference in the bailiff report that the Petitioner No. 2 has informed the bailiff that his father expired four months back. The baillif’s report, however, indicates that there was no protest from any one even from the Petitioner No. 2 while the decree was sought to be executed. On the contrary, the baillif report indicates that the plaintiffs i.e. present respondents have taken the possession of the suit property without any objection and without any dispute. Not only that the petitioner has made an endorsement to the effect that he has received old plastic tank. This observation from the baillif report supports the case of the respondent that only because some persons have instigated the petitioners, the petitioners have filed Revision Application before the learned Assistant Judge and they are prolonging the matter by filing the present writ petition.

       The facts found on record cannot indicate that the decree was sought to be executed against the legal representative of the decease. Even if it is assumed that the decree is sought to be executed against the legal representative of the deceased under Order-21 Rule-99, the petitioners have got an alternative remedy. Rule-99 states that where any other person other than the judgment-debtor is dispossessed of immovable property by the holder of a decree for the possession of such property or, where such property has been sold in execution of a decree, by the purchaser thereof, he may make an application to the Court complaining of such dispossession. Here in the present case the petitioners are the persons other than the judgment-debtor and according to their submissions if they are dispossessed of immovable property by the respondents in that case they have to make application to the Executing Court complaining of such dispossession.

        [Para 18]