K.T. Sankaran, J.

The question involved in this Civil Revision Petition is as to the scope and ambit of Rule 12 Order 22 of the Civil Procedure Code. Would the execution proceeding abate on the death of the decree holder/petitioner in the execution petition? Can the legal representatives come on record at any time? The further question is whether the executability of the decree or otherwise should be gone into at the time when the application for impleading of legal representatives is considered.

2. One Raghavan Unni obtained a decree. The writ petitioner is the third defendant in the suit. Respondents 5 and 6 in the Writ Petition are defendants 1 and 2. Raghavan Unni filed Execution Petition. As per decree, it was declared that the plaint schedule property including the building was purchased and constructed by the funds supplied by the plaintiff. The decree also directs the defendants to execute a proper conveyance in favour of the plaintiff or his nominee within two months from the date of decree. The decree directs that if the defendants fail to execute the sale deed in favour of the plaintiff or his nominee within two months, the plaintiff is entitled to get a proper conveyance executed in his name or his nominee through court. The decree also allows the plaintiff to recover plaint B schedule movables from the defendant. During the pendency of the execution petition, the decree holder, Raghavan Unni, died on 27.12.2007. His widow and children filed an application to get themselves impleaded as additional petitioners in the execution petition.

3. The judgment debtors opposed the application for impleading. They contended that though the petitioners in the application are the widow and children of the decree holder, they cannot be termed as legal representatives, as no rights devolved on them. The respondents contended that the decree is not executable at the instance of the widow and children of the decree holder. The further contention is that the decree is incapable of execution and it is a nullity as the decree was passed in violation of the provisions of Section 16(l)(a) (iii) of the Kerala Co-operative Societies Act. In the absence of any devolution of interest, the widow and children of the decree holder are not entitled to come on record as additional petitioners in the execution petition.

4. The court below held that the decree has become final and it was confirmed by the appellate court. It was held that since there is no dispute that the petitioners before the court below are the widow and children of the decree holder, they are entitled to come on record as additional petitioners. The court below also observed that the question whether the decree is executable or not is an issue to be heard separately and that question cannot be determined at the threshold when the application for impleadment is filed in the execution proceedings.

5. The learned counsel for the petitioner submitted that even before considering the question whether the application for impleading is to be allowed, the executing court was bound to consider whether the decree is executable at the instance of the legal representatives of the deceased decree holder. He also submitted that the question whether the decree is executable at all is also to be considered by the executing court. The learned counsel for the petitioner further contended that in view of Rule 12 Order 22 of the C.P.C. the provisions of Order 22 R.3 cannot be made applicable in this case and therefore the legal heirs of the deceased decree holder are not entitled to come on record.

6. Section 2(11) of the Civil Procedure Code defines "legal representative" thus:

"Legal representative" means 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 the party so suing or sued;

7. Section