In The High Court at Calcutta Ordinary Original Civil Jurisdiction Original Side The Hon'ble Justice Sabyasachi Bhattacharyya R.V.W.O. No.48 of 2024 G.A. 1 of 2024 Arising out of I.A/GA. No.3 of 2024 E.C. No.1016 of 2015 Sujata Gupta Winfield and others VS CIC society For the award debtors/petitioners : Mr. Chayan Gupta, Adv., Mr. Rajesh Upadhyay, Adv., Mr. Pourash Bandyopadhyay, Adv., Mrs. Sabita Biswas, Adv., Ms. Swarabita Biswas, Adv.

For the awardholder/respondent : Mr. Sudip Deb, Sr. Adv., Mr. S. K. Poddar, Adv., Ms. Ipsita Ghosh, Adv., Mr. A.K. Gandhi, Adv.

Heard on : 03.01.2025, 10.01.2025, 31.01.2025, 07.02.2025, 21.02.2025 Judgment on : 28.02.2025 Sabyasachi Bhattacharyya, J:-

1. The present application seeks a review of the order dated November 8, 2024 whereby the legal heirs of one of the deceased award debtors, namely Late Aditya Vikram Gupta, were added as parties to the execution application and the plea of the award debtors/review applicants that the execution case was time-barred, either as against the heirs or Late Aditya Vikram or as a whole, was turned down.

2. There are four plinths of the arguments of the award debtors/review applicants:

(i) That Section 21 of the Limitation Act, which was one of the bases of the order under review, is not applicable to execution applications but only to suits. Hence, the reliance of the court on the said provision was an error apparent on the face of the record. In the absence of such provision being applicable, the proviso thereto, which mitigates the belated filing of a suit in cases of good faith, is also not applicable to the execution case.

(ii) Even if, for argument‟s sake, it is assumed that Section 21 of the Limitation Act is applicable to the execution case, the proviso to sub-section (1) thereof is not attracted, since there was lack of “good faith”, which is an essential pre-requisite of the proviso, on the part of the award holder. There was absolute lack of due diligence on the part of the award holder in not impleading Aditya Vikram (since deceased), who was one of the award debtors, in the execution case and, as such, the attempt to implead his heirs after the expiry of the limitation period for filing the execution case was bad in law.

(iii) Contrary to the observations in the order under review, the award was not severable and as such, the estate of the deceased award debtor was not represented by the other award debtors. Since the liabilities of each of the award debtors were separate and independent, the estate of the deceased award debtor could not be said to have been represented by the others.

Alternatively, in view of non-impleadment of the heirs of one of the award debtors during the limitation period for filing an execution case, even if the award was not severable, such non- impleadment vitiates the filing of the entire execution case, which should be deemed to be time-barred as a whole.

(iv) The execution application was served on the award debtors only in the month of August 2024. On August 19, 2024, the award debtors intimated the date of death and the names of the heirs to the award holder. In view of non-service of prior notice in terms of Order XXI Rule 22 of the Code of Civil Procedure, there was no opportunity for the award debtors to furnish such details previously. As such, the award holder‟s argument as to the award debtors having shirked their liability under Order XXII Rule 10-A of the Code of Civil Procedure to intimate the death of the deceased award debtor did not arise previously and the award debtors could not be faulted on such count. Moreover, since the learned Advocates for the other award debtors did not represent the heirs of the deceased award debtor, no liability was cast on them to furnish any such information under Order XXII Rule 10-A of the Code.

3. Learned counsel for the review applicants cites Manmotha Nath Mitter and others v. Rakhal Chandra Tewary and others, reported at (1909- 10) 14 CWN 752 and Union of India v. Shambha