Question: A applies for execution of a decree for possession against B. During the pendency of the said execution, B dies on 10th March, 2008. A applies on 10th September, 2008 for substitution of legal representatives of B in the execution. Is the said application within time? Give reasons also

Find the answer to the mains question only on Legal Bites. [A applies for the execution of a decree for possession against B. During the pendency of the said execution, B dies on 10th March 2008. A applies on 10th September 2008 for substitution of legal representatives of B in the execution. Is the said application within time? Give reasons also]

Answer

Order 22, Rules 3 and 4 respectively provide for the substitution during the course of a suit of a legal representative for a deceased plaintiff or of a deceased defendant.

Rule 3 with which we are concerned provides in Sub-rule (1), that where a plaintiff dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit,” and in Sub-rule (2) it is stated that where within the time limited by law no application is made under sub-rule (1), the suit shall abate so far as the deceased plaintiff is concerned, Rule 4 contains a similar provision relating to the death of a defendant.

These are followed by the important Rule of Rule 12 introduced in the present Code, which states that nothing in Rules 3 and 4 shall apply to proceedings in execution of a decree or order.

Moreover, the same rule should be read with Section 50 of the code that talks about Legal representatives. The provision runs as under:

“(1) Where a judgment-debtor dies before the decree has been fully satisfied, the holder of the decree may apply to the Court which passed it to execute the same against the legal representative of the deceased.

(2) Where the decree is executed against such legal representative, he shall be liable only to the extent of the property of the deceased which has come to his hands and has not been duly disposed of; and, for the purpose of ascertaining such liability, the Court executing the decree may, of its own motion or on the application of the decree-holder, compel such legal representative to produce such accounts as it thinks fit.”

If execution of the decree is necessary against the legal representative of the deceased judgment-debtor the decree-holder has no option but to proceed under Section 50. He must apply to the Court to execute the decree against the legal representative and notice must issue to the legal representative as required by Order 21, Rule 22.

On the death of a judgment-debtor, the decree cannot be executed against him, for there is no such thing as execution against a dead man. His property remains subject to the decree and to an attachment upon it, notwithstanding that it has passed to his heir or to a surviving coparcener, or, if there is an executor, has vested in his executor. But his death effects a change in the parties liable to execution.

The legal representative has stepped into the place of the deceased judgment-debtor, with the liability under the decree, though his liability is limited to the extent of the deceased’s assets which have come into his hands and have not been duly administered by him. In these well-known principles lies the reason for the provision in Section 50 enabling the decree-holder, whose decree has not been fully satisfied prior to the death of the judgment-debtor, to apply to the Court to execute the decree against the legal representative.

Under Article 182 of the Limitation Act, the period of limitation for an execution application is three years from the date of the decree. By virtue of Rule 12 of Order 22 nothing in rule 3 and rule 4 which lays down a period of limitation in which application has to be made otherwise the suit will abate, doesn’t apply to the execution of a decree or order. Thus, the application of A for the execution of the decree in his favour is well within time and will be proceeded to effectuate the same by the court.

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