Execution cannot proceed without the substitution of the heirs of the deceased decree-holder.

Smt. Vidyawati Gupta, who was the owner and landlady of House No. 17/25 Hemilton Road, Allahabad filed Suit No. 93/97 for eviction and recovery of arrears of rent against the Executive Engineer, Investigation and Planning Division of State of Uttar Pradesh. There was an office of Executive Engineer in the premises. Sri M. A. Majid was posted as Executive Engineer and was living in a portion of the premises and he was also made a party in the suit. The suit was decreed on 13-4- 1982; that decree has been put to execution by Smt. Vidyawati Gupta, who has since died on 15-12-1982. However, the execution is being prosecuted by respondent No. 1, Sri Rajesh Pandey. He claims that Smt. Vidyawati Gupta left Smt. Meera Gupta and Sri Rakesh Gupta as her heirs; that Smt. Meera Gupta and Sri Rakesh Gupta executed the power of attorney in his favour to execute the decree. Therefore, he is entitled to execute the decree and has filed general power of attorney executed in his favour.

2. The present revisionists filed objections in the execution which were treated as objections under Section 47 C. P. C. They allege that they have purchased the property from Smt. Meera Gupta and Sri Rakesh Gupta, heirs of Smt. Vidyawati Gupta; that, therefore, the decree cannot be executed by Smt. Vidyawati Gupta or by her general power of attorney holder. It was further pleaded that Smt. Vidyawati Gupta died on 15-12-82 whose heirs have not been impleaded and therefore, the execution cannot proceed; that there is no general power of attorney in favour of the opposite party No. 2 to execute the decree.

3. The learned Addl. District Judge, before whom the execution is pending considered the objections. She has held that paragraph 18 of the general power of attorney of Meera Gupta and Rakesh Gupta authorise opposite party No. 2 to execute the decree. Therefore, Rajesh Pandey, opposite party No. 2 is entitled to execute the decree. The learned Addl. District Judge, therefore, has rejected the objections of the revisionists by order, dated 29-2-2000. Aggrieved by it, the present revision has been filed.

4. I have heard Sri Vimilesh Srivastava, learned Counsel for the revisionists and Sri R. D. Singh, learned Counsel for the opposite party No. 2.

5. The first point raised before me in this revision is that execution of the decree was filed by Smt. Vidyawati Gupta and is execution case No. 14/82. Admittedly, Smt. Vidyawati Gupta had died on 15-12- 1982. Her heirs have still not been substituted in the execution. It is true that in the light of the provisions of Rule 12 of Order XXII, C. P. C. , the provisions of Order XXII, C. P. C. does not apply to the execution proceedings and the execution cannot abate on the death of the decree-holder, but the question is as to whether from this provision it can be concluded that execution can proceed after the death of the decree holder without substitution of his heirs. The reply will certainly be in negative. There must be somebody to prosecute the proceedings and the execution proceedings cannot be proceeded till the heirs of the decree-holder are substituted. The decree- holder, who moved application for execution died as back as in the year 1982. Her heirs have still not been substituted. The natural question is as who will prosecute the execution proceedings.

6. In Manmohan Dayal & others v. Kailash Nath & others, AIR 1957 Allahabad 647, Division Bench of this Court, has observed that if an execution is already pending at the instance of the decree-holder, his legal representatives, after his death need not make a fresh application for execution and it is sufficient that they apply for continuation of the proceedings in the pending execution. (under-lined by me)

7. The other decision relevant to the point is of the Division Bench decision of Calcutta High Court in Smt. Rajlakshmi Dassi v. Bonomali and others, AIR 1955 Calcutta 573. In this case the judgment-debtor had died during the pendency of the execu