Harichand v Udin and Another (Civil Case No. 301 of 1932,) [1940] EACA 30 (1 January 1940)

## ORIGINAL CIVIL

#### BEFORE LUCIE-SMITH. J.

### DHULLA HARICHAND, Plaintiff

# 1. GULAM MOHU-UDIN, 2. AZIZ DIN s/o GULAM MOHU-UDIN. Defendants

### Civil Case No. 301 of 1932

Civil Procedure—Execution—Death of judgment creditor in India—No personal representative—Application for execution made in deceased judgment creditor's name on instructions of his widow—Civil Procedure Rules Order XXI. Rules 3. 4 and $11$ .

Dhulla Harichand, the original plaintiff in the suit, obtained judgment against the defendants on 1st November, 1932, and died in January, 1940, steps in execution having been taken during his life time. On the 19th June, 1940, an application was made by an advocate in the name of the deceased judgment creditor for execution of the balance of the decree by way of personal arrest and imprisonment of the defendants (judgment debtors) and a notice to show cause issued. The defendants opposed the application on the grounds that the application was made after the death of the decree-holder without any representative being appointed in administration of his estate and that the advocate's authority from the judgment-creditor ceased from the time of his death. The advocate however had acted on fresh instructions from the widow of his deceased client, the original decree-holder.

Held $(2-10-40)$ .—That the application was in order.

Kapila for the Plantiff (widow of deceased decree-holder).

Khanna for the defendants.

RULING.—This is an application for execution by way of arrest and imprisonment of the two judgment debtors herein.

The application is made by Mr. Kapila as "Advocate for the judgment" creditor" and from the application itself it appears that the judgment creditor or decree holder is one Dhulla Harichand, the original plantiff in the action.

The chronological history of the case is as follows. On 1st November, 1932, the plaintiff obtained judgment by default against the two defendants.

On the 14th February, 1933, application for execution by way of arrest and imprisonment was made and on the 28th February, 1933, the defendants were ordered to pay monthly instalments of Sh. 30.

On the 6th February, 1935, another application for execution was made and on the 13th February, 1935, the defendants undertook to pay the arrears under the previous order.

On the 19th June, 1940, the present application for execution was ordered to issue on the application of Mr. Kapila who has informed the Court that he is instructed by the widow of the decree holder.

In his affidavit of the 12th August, 1940, the first judgment debtor states that the judgment creditor died in January, 1940, and that statement has not been challenged.

It would not appear that any steps have been taken by the widow or any other interested party to obtain letters of administration to the estate of Dhulla Harichand (deceased) in this Colony or elsewhere.

$\mathbf{v}$ .

Mr. Khanna for the judgment debtors opposes the present application on two grounds (1) that this application was made after the death of the decree holder and without his legal representative taking out administration; and (2) that Mr. Kapila's authority to act ceased at the time of the death of the decree holder. Taking the second ground first it is true that it is stated in Cordery's Law relating to Solicitors (4th Ed.) at p. 130 that "Where the client dies the solicitor's authority comes to an immediate end" but in this case it is not disputed that the solicitor in question has received fresh instructions from the widow of his deceased client. As regards the first point we must turn to our Order XXI, rr. 3, 4 and 11, which are similar to the Indian Order XXII, rr. 3, 4 and 12, and the cases decided thereon.

Our rule 11 reads: "Nothing in Rules 3, 4 and 8 shall apply to proceedings in execution of a decree or order".

In Mulla's Code of Civil Procedure (10th Ed.) at p. 881 the learned author in his commentary says: "The rule is therefore for the benefit of the decree holder, for his heirs need not take steps for substitution under rule 3 but may apply immediately or at any time while the proceeding is pending, to carry on the proceeding, or he may file a fresh execution application".

In Shailendranath Ghosh v. Surendranath De (1930, I. L. R. 57 Cal. p. 1137 at p. 1140) the learned Judges in appeal say: "O. XXII, Rule 12, Civil Procedure Code, lays down that the provisions as to abatement of a suit or appeal, in consequence of death or insolvency of a party, do not apply to execution proceedings. It follows, therefore, that the provision is for the benefit of a decree holder or his heirs and that the heirs need not take steps for substitution. This is clear from the decision of the Judicial Committee in the case of Kedarnath Goenka v. Anant Prasad Singh (L. R. 52 I. A. 188). There are two courses, either of which may be availed of by the heirs, that is to say, that they may apply immediately for carrying on the proceedings in execution of the decree or they may apply for fresh execution under O. XXI., r. 16, Civil Procedure Code (our O. XIX. r. 13) Akhoy Kumar Talukdar v. Surendra Lal Pal (1926, C. W. N. 735)".

Mr. Khanna has quoted 57 Cal. 1137 in support of his contention but if my reading of the judgment be correct that case is against him.

In (1934) I. L. R. 13 Pat. p. 777 Khaja Mohamed Noor J. says at p. 780: "No doubt, there is no express provision for substitution of the name of a representative of the deceased decree holder during the pendency of the execution proceedings but, as is apparent from a number of cases, such applications are filed and allowed, and the Courts have almost invariably treated such applications to be applications for continuation of the pending execution proceedings. It has been held more than once that the Code is not exhaustive. It is clear from O. XXII r. 12 read with rules 3 and 4 that an execution proceeding does not abate on the death of the decree holder. If so, there is no bar to the execution continuing at the instance of his representative".

I would also refer to A. I. R. (1939) Lahore p. 34 Risal Singh v. Chandji.

In view of the authorities to which I have referred and to the provisions of Order XIX Rule 13 I have come to the conclusion that the present application is in order. $\cdot$