The execution proceeding was maintainable in the absence of the other legal representatives of the deceased judgment-debtor, as the petitioner represented the entire estate of the deceased judgment-debtor.

P. C. MISRA, J.

( 1 ) THIS revision is directed against an order passed by an Executing Court refusing the prayer of the surviving judgment-debtor to drop the Execution Case as not maintainable. The facts in brief leading to the aforesaid order may be stated as follows : the present opp. party (Jadunath Mohapatra) filed a proceeding under the Orissa House Rent Control Act against the present petitioner and his father Mohanlal Modi alleging that the said Mohanlal was a tenant in respect of a shop room and that he is liable to be evicted on the ground of wilful default and also for the reason that the landlord required the house bona fide for his own purpose. It has been stated that there was no allegation in the said proceeding that the present petitioner was a tenant under the present opp. party, though he was included as one of the opp. parties in the said proceeding. The petitioner alleges that he is one of the 5 sons of Mohanlal. The petitioner and his father (since dead) denied the relationship of landlord and tenant and set up a case that Mohanlal was a tenant under one Sitanath, a co-sharer of Jadunath. It was alleged that Sitanath having died some time prior to the initiation of the House Rent Control Proceeding : Mohanlal became the tenant under his son Prasanna Mohapatra, to whom he was paying rent. The House Rent Controller on consideration of the evidence on record dismissed the application for eviction. The landlord carried up the matter to the appellate Court which reversed the decision of the House Rent Controller and allowed the prayer for eviction. The aforesaid order of eviction is under execution in the Court of Munsif, Balasore. Mohanlal died on 24-5-1985 at Balasore of which intimation was given to the Executing Court. He has left behind his 5 sons and two daughters of whom the petitioner alone was a party in the House Rent Control Proceeding as well as in the Execution Case. Despite the intimation of death no steps for substitution were taken by the landlord-decree-holder to bring the other legal representatives on record. The present petitioner filed an application objecting to the executability of the order of eviction on the ground that the proceeding has abated for non-substitution of the other legal representatives of the deceased Mohanlal, who were in possession of the shop room in question and were running business in medicine therein. By the impugned order the Executing Court dismissed the said application holding that the Execution Case is maintainable in the absence of other legal representatives. Hence this revision.

( 2 ) MR. Kar, learned Counsel for the petitioner at the first instance, urged that the executing proceeding arising out of an order of House Rent Controller, is a civil proceeding, which would abate for non-substitution of the legal representatives. But the said argument was not pursued in view of the provisions contained in O. 22, R. 12 of the Code of Civil Procedure, which provides that nothing in Rules 3, 4 and 8 shall apply to proceeding in execution of a decree or order The Rr. 3 and 4 of the said Order prescribe procedures for substitution in case of death of a plaintiff or a defendant respectively and the consequence of non-substitution of their legal representatives. The scope of R. 8 with which we are not concerned, is however, different. There would be no question of abatement of the execution proceeding for non-substitution of the legal representatives of deceased judgment-debtor, if the relevant rules of O. 22 would not apply. In the event of death of a judgment-debtor during the pendency of an execution case, whether it is necessary to bring the legal representatives to record for the purpose of successful execution of the decree and whether the execution proceeding would be maintainable in the absence of the proper parties, are however, different matters, which I deal with later on.

( 3 ) THE main argument of Mr. Kar in this case has been that the petitioner's father