P L D 1973 Lahore 695 (PLP)

MUSHTAQ HUSSAIN, J.‑‑--The Central Exchange Bank filed a suit on 1‑11‑1951 for refund of Rs. 12,002.8‑0 with future interest on the basis of a mortgage against three brothers, Ch. Dilawar Ali, Ch. Muhammad Anwar and Ch. Karam Rabbani. On 8‑11‑1953, the Court passed a compromise decree for a sum of Rs. 12,527‑8‑0 against the defendants directing that the same be paid by 8‑4‑1954. This was a preliminary decree for payment of money. No payment was made and on 30‑8‑19j6 the Bank files an application under Order XXX, rules 4 and 5 of the Code of Civil Procedure for a final decree which was passed on 19‑1‑1957. The decree sheet was, however; drawn up on 15‑5‑1961. An application for the execution of the decree was made by the decree‑holder on 13‑6‑1961. Ch. Karam Rabbani appellant filed objections under section 47 on 5‑9‑1961 and the learned executing Court framed the following two issues:‑ (1) Was the decree dated 8‑11‑1953 final and executable? (2) if the reply be in the negative, is the decree dated 15‑5‑1961 not in conformity with the judgment dated 19‑1‑1957 as having not been drawn up on the date of the order and thus time‑barred. On 24‑3‑1962 issue No. 2 was found in favour of the judgment‑debtor and the execution application was dismissed as barred by time. On 25‑1‑1962 Dilawar Ali judgment‑debtor breathed his last. An appeal was filed by the decree‑holder on 18‑5‑1962. The Bank having gone into liquidation on 29‑5‑1952, the same was transferred by the Additional District Judge to the High Court under section 62 of the Banking Companies Ordinance and was registered in this Court as Civil Original No. 118 of 1962. On 24‑6‑1963 the Bank filed an application under section 151, C. P. C. for impleading legal representatives of Dilawar Ali judgment‑debtor deceased supported by an affidavit in which it had contended that "the fact of the death of respondent No. 1 was not to the knowledge of plaintiff‑appellant and the same was not brought to the notice of the lower Court by the defendant‑respondent No. 2". It was further contended in the application that on 17‑6‑63 the Official Liquidator counsel brought the factum of the death of Dilawar Ali respondent to the notice of the learned Court upon which an order was passed on 17‑6‑1963 directing that the legal representatives of respondent No. 1 who was reported to be dead be brought on record. In the reply filed on 13‑1‑1964 by Ghulam Zakria, legal representative of respondent No. 1, it was contended that "respondent No. 1 died on 25‑1‑1962 and this fact was within the knowledge of the petitioner at the time when the notices for service were issued by the learned Additional District Judge, Lahore and the summons against respondent No. 1 were received by the Court with the report that Ch. Dilawar Ali was dead". It was consequently urged that the application had abated and should be consigned as such. By judgment dated 26‑5‑1965, my learned brother Muhammad Akram, J. found that‑ (a) By virtue of rule 12 of Order XXII of the Code of Civil Procedure the provisions of rules 3, 4 and 8 of that Order relating to abatement axe not applicable to execution moil (6) The death of Dilawar Ali had taken place during the course of the hearing of the objections preferred by Ch. Karam Rabbani judgment‑debtor No.

3. The other two judgment‑debtors did not join with him as objectors. On the death of Dilawar Ali during the course of proceedings in the Court of first instance, his legal representatives were not brought on record and for this the decree‑holder was not to be blamed. It was for Ch. Karam Rabbani, the objector, to have impleaded the legal representatives of the deceased in the trial Court; (c) The decree‑holder cannot be penalised for this fault on the part of one of the judgment‑debtors; (d) At best what can be said is that the order passed by the Senior Civil Judge in the absence of the legal representatives of Dilawar Ali deceased shall not bind them as they war., not parties to it and likewise the result of this appeal shall not be binding; (e) Issue No. 2 has not been pressed and it was conceded before him that decree dated 8th October 1953, was merely a preliminary decree and was not executable. That objection was rightly rejected by the executing Court. His Lordship consequently set aside the order cf the learned Civil Judge dated 24‑3‑1962 and held that "the execution of the decree against the respondents is bound to proceed in accordance with Law". The appeal was consequently accepted. The parties were left to bear their own costs. The objectors have filed the present Letters Patent Appeal. The questions that call for determination in this case could be summed up as follows:‑ (a) Was the decree dated 8‑11‑1953 final and executable? (b) Can the application under Order XXXIV, rule 5, presented on the 30th August 1956, be considered to be a "composite application" and is to be treated also as an execution application? (c) Was the decree dated 15‑5‑1961 in conformity with law and the order dated 19‑1‑1957 so tar as the date given on the former is concerned? (d) If not, was the execution moved in time? (e) Is the period extended by section 73 of the Banking Companies Ordinance? (f) Was it the duty of the Official Liquidator of the Bank to apply for bringing the legal representatives of Dilawar Ali deceased on record during the pendency of the execution proceedings before the Civil Judge? (g) What is the effect of the order of the Senior Civil Judge having been passed in the absence of Dilawar All's legal representative? (h) Was the appeal before the Additional District Judge/learned Single Judge in Chambers competent in the absence of the legal representatives of the deceased. If not, what is the effect? (A): The Central Exchange Bank Ltd., plaintiff filed the suit for the recovery of Rs. 12,002‑8‑0 on the basis of account, on the basis of mortgage'. It was made clear in the plaint that the defendants had mortgaged their house without possession with the Bank for the repayment of the amount that may become due on the overdrafts. The particulars of the mortgaged pro perty are contained in paragraph 4 of the plaint the prayer runs as follows:‑ "That under the circumstances, it is respectfully prayed that a decree for Rs. 12,002‑8‑0 along with future interest from the date of suit till the date of realization in full as the rate of 7 % per annum with monthly rests calculated on the first of every month on the security of the mortgaged property fully described In paragraph 4(f) above be passed in favour of the plaintiff‑Bank against the defendants, and the defendants be asked to pay this amount by a dote to be fixed by this Hon'ble Court, failing which the properties described above may be ordered to be sold for the repayment of the amount in suit, and in case any balance amount is found due to the plaintiff-Bank after making the above adjustment a personal decree may also be ordered to be passed against the defendants in favour of the plaintiff-Bank. The costs of the suit may also be awarded to the plaintiff against the defendants." This is the form of suit normally known as a suit for the 'sale of property'. Appendix A of the First Schedule, which deals with pleadings, provides for the relevant form of plaint under No.

45. As is clear from paragraph 6 of the form, the plaintiff has to claim payment or in default sale of land and in cane the proceeds of the sale are found to be insufficient the plaintiff reserves the right to apply for a personal decree of the plaintiff. This is the form in which the suit was filed. Such suits are covered by Order XXXIV and morer particularly by rules 4 and

5. Order XXXIV, rule 4 provides for the passing of a preliminary decree in a suit for the sale by which, in a case like the one is before us, the amount due on that date is declared and a direction is made requiring the defendant to pay into Court the amount so found due within a stipulated period; and further directing that in default of the defendant paying the amount the plaintiff shall be entitled to apply for a final decree directing that the mortgaged property or a sufficient part thereof be sold and the proceeds of tie sale be paid into Court. The decree in such a suit has to be in Form 5‑A provided in. Appendix D to the First Schedule of the Cede of Civil Procedure. The heading shows that the decree is passed under Order XXXIV, rule

4. Bulk Bee and another v. Kaki Raji Muhammad Umar Sahib and others (A I R 1926 Mad. 415) it was held by the Privy Council following Ashfaq Hussain and others v. Gauri Sahai (A I R 33 All. 264) that‑ A preliminary decree is not capable of execution and that it is only a decree absolute under rule 5 of Order XXXIV that can be executed . . . . . . Till the mortgaged properties are sold it is not possible to say whether the sale proceeds would be sufficient to pay off the decretal amount. It is only when the sale proceeds are not sufficient to cover the whole of the decretal amount that the personal liability to pay the balance arises if the document sued on provides for personal remedy against the mortgagor, and a preliminary decree cannot, therefore, give a personal remedy against the mortgagor." In Ashfaq Hussain and others v. Guari S Thai the Privy Council held that‑ "The respondent was the holder of a mortgage of the interest of the appellants and of a lady named Mst. Sakina in certain sands. The mortgage debt was a joint debt, and the mortgaged property was joint property. Default was made in payment of the debt, and thereupon the respondent instituted proceedings for the recovery of the money. He also asked for a decree that if payment were not made the property should be sold. The present appellants put in defences, but the lady failed to appear. The case was tried, and the defences were found to be untrue, whereupon a decree was pronounced against all the defendants, the judgment against the lady going by default of appearance. This decree was dated the 25th August 1900, and it was made absolute on the 21st December 1901. Nothing was paid, and on the 25th February 1905 the plaintiff filed an application against all the defendants in the action asking that the decree of the 15th August 1902, might be made absolute, and for an order for the sale of the property. This decree, which was dated the 16th November 1904, was the second step in granting to the plaintiff the relief to which be was entitled. It supplemented and completed the decree granted on the 25th August 1900, and for the first time gave to the plaintiff that which would alone justify him in applying for the joint execution to which he was entitled. It is from the date of this last judgment (the 16th November 1904), or rather from the date when it was made absolute (the 27th November 1905), that the time under the statute began to run. It was then for the first time that the Court granted a complete decree to the respondent." It is, therefore, clear that the decree passed on 8‑11‑1953, which was admittedly a preliminary decree was neither final nor executable. It may be mentioned at this juncture that the aforesaid decree is on the usual printed form and is described as‑ "An English Civil Form No.

42. Preliminary Decree for Sale. Order XXXIV, rule 4 when the Court declares the amount due." As has been seen above, this decree was neither final nor executable and the answer to the first question 13, therefore, in the negative. (B) This brings us to the question whether the application presented on 30th August 1956, could be considered to be a composite application under Order XXIV, rule 5 as well as under Order XXI. This application bears the following heading:‑ "Application under Order XXXIV, rules 4 and 5 of the Civil Procedure Code for passing of final decree for the sale of the mortgaged property." There is no mention of Order XXI of the Civil Procedure Code and whether that would make any difference or not the fact cannot be disputed that the applicant did not consider it to be an application under Order XXI and did not present it as an application for execution. Paragraph 4 contains the assertion that although the Official Liquidator has tried his level best to persuade the judgment‑debtor to satisfy the decree but no heed has been paid to it. Paragraph 5 of the application stipulates that in view of what has gone above, the mortgaged house be sold in accordance with the directions contained in the preliminary decree dated 8‑10‑1953 to enable the decree‑holder to realise the decretal amount, together with the interest which has accrued since the passing of the preliminary decree. The description of the mortgaged house follows. There is also an observation that the decree‑holder would be at liberty to pray for a personal decree if the sale proceeds of the house are not enough to satisfy the debt. It is not disputed that before the presentation of this application a final decree had not been passed. It was on 19‑1‑1957 that this application was disposed of by the learned Senior Civil Judge. The order which is written in Urdu when translated in English runs as follows:‑ "None is present. Because the report of the Civil Nazir shows that no amount has been deposited, the decree dated 8‑ 10‑1953 is hereby made absolute." This order was passed on 19‑1‑1957. It is thus clear that before 19‑1‑1957 no final decree under Order XXXIV, rule 5 could have been drawn up. It has already been seen that it is only a final decree under Order XXXIV, rule 5 which is executable. There being no such decree in existence any application for its execution would not lie. It was held in Kanniah Naidu v. Chengama Natdu and another (A I R 1917 Mad. 844) that‑ "The decree was a mortgage decree for sale. The appellant applied for its execution on 30th November 1912, as transferee‑decree‑holder under Order XXI, rule 16, C. P. C. and prayed for the passing of a final decree and also for sale. It has to be observed that the lower Courts have not scrutinised the prayer in the petition and did not have it properly amended as they ought to have done. The petition mentions in the beginning only Order XXI, rule 66, C. P. C. In Column 10 it mentions Order XXI, rule 16 and Order XXI, rule 66, C. P. C. These rules relate to applications by the transferee of a decree for execution thereof, to the issuing of notice of such applications and to the issuing of proclamation for sale. But there is at present no executable decree, because only a preliminary decree under Order XXXIV, rule 4 has been passed in the suit. The present Petition No. 1032 of 1912 in column 10 admits that a final decree has to be passed as it prays for the making of the decree final. Till a final decree is passed the suit is pending. Under Order XXXIV, rule 5, clause (2) when the payment is not made the plaintiff has to make an application to pass the final decree for sale. The application for execution, therefore, was premature and as there is a prayer for passing a decree for sale, the appellant ought to have been asked to amend the petition as an application under Order XXXIV, rule 5, clause (2), Civil P. C: Reference may also be made in this connection to Motilal v. Ram Narain (2) where their Lordships were considering the applicability of Order XXII, rule 4, C. P. C. and it was held‑ "It is urged that a preliminary decree has been passed in this case and, therefore, rule 4 cannot apply. With this we cannot agree. In our opinion, the suit was still pending. A preliminary decree does not put an end to the suit. It must be continued up to the stage of the final decree." A Full Bench of the Patna High Court observed in Jungli Lall and others v. Laddu Ram (A I R 1919 Pat. 430) that‑ "The present procedure prescribed by Order XXXIV of the Code of 1908 differs from that of the Transfer of Property Act in that it requires a final decree to be passed before execution can take place, and until that is done there is no decree or judgment that can be executed" Another Full Bench expressed itself as follows in Sat Parkash and another v. Bahal Rai and another (A I R 1931 All. 386) that‑ "There can be no question that the suit does not come to an end when the Court passes a preliminary decree, and the passing of the final decree is a further proceeding in that very suit." In Madan Theatres Ltd. v. Dinshaw & Co. Bankers Ltd. (A I R 1915 P C 152) that‑ "But apart from the question whether the parties could not compromise a decree (as to which see 66 I A 84), it has again and again been held in India that this rule only applies in execution, that execution does not begin until after a final order for sale has been passed and that, therefore, the rule has no application when the question is whether or not a final decree for sale should be passed. Their Lordships agreed with the Courts in India in this respect." Iqbal Ahmad, C. J. and a learned colleague found in Ram Nath v. Deokinandan Krishna and others (A I R 1947 All. 83) that‑ "It is obvious that no application for the execution of any decree can be entertained unless the executable decree exists . . . . . No preliminary decree for sale can be executed. An application for the execution of a decree is application in execution, whereas an application for the pre paration of a final decree is an application in suit. We find it difficult to treat en application made in execution as one made in a suit. Order XXXIV, rule 5(3), Civil Procedure Code, 1908, provides that there should be an application for final decree by the plaintiff. The words "in this behalf', in that rule are important and significant. The decree‑holder's own conduct shows that he had not intended to treat the application in execution dated 9th September 1941, as one for the preparation of the final decree. What was the need of the second application‑dated 24th January 1942, if the application dated 9.h September 1941, was sufficient for the preparation of a final decree under Order XXXIV, rule 5, Civil P. C.? . . . . No execution of the decree can take place on the application dated 9th September 1941, as no final decree in accordance with the preliminary decree of this Court existed on that date." It can, therefore, not be doubted that In the circumstances of this case and in the light of the judicial pronouncements referred to above, the application dated the 300 August 1956, which was clearly presented under Order XXXIV, rule 5 was an application in the suit for sale of property and was restricted to the preparation of a final decree. The application contained a prayer that the mortgaged house be sold In accordance with the directions contained in the preliminary decree dated 8‑10‑1953 but it did not and could not convert it into an application for execution. The prayer was rightly made and it is the only way in which a prayer could be worded in an application under Order XXXIV, rule 5 because the final decree has to be worded accordingly as would be clear from Formal Final decree for sale Order XXXIV, rule 5 in Appendix D to the First Schedule. There being no final decree in existence on 30th August 1956, there could be no appli cation for execution as there was nothing to be executed. As has already been stated above, even the conduct of the decree‑holder shows that ho never meant the application dated 30th August 1956, to be an application for execution of a decree. In fact, he presented an application for execution under Order XXI of the Code of Civil Procedure on the 13th June 1961, which forms part of the record and which initiated the proceedings in which the objections which had led to this appeal were raised. (C): There is no dispute that the decree dated 15‑5‑1961 was in all respects In conformity with law and the only point in dispute is whether it should have borne the date 15‑5‑1961 which it does. Section 33 of the Code of Civil Procedure prescribes that‑ "The Court, after the case has been heard, shall pronounce judgment, and on such judgment a decree shall follow." This section, inter alia, lays down the order in which the judgment has to be pronounced and the decree has to be made. Order XX of the Code deals with judgment and decree. Rule 3 contains the mandate that the judgment shall be dated and signed by the Judge. Rule 6(1) ordains that "the decree shall agree with the judgment". Rule 7 lays down that‑ "The decree shall bear date the day on which the judgment was pronounced and, when the Judge has satisfied himself that the decree has been drawn up in accordance with the judgment, he shall sign the decree." The date of the decree has consequently got to synchronise with the date on the judgment and about this there could be no controversy because the language of this rule is as clear as any person could make it. It is axiomatic that the date of the decree must correspond to the date on which the judgment is pronounced no matter j what the date of the signing of the decree may happen to be. The reason for that is not far to find. It is on the day when the judgment is pronounced that the Court shall be deemed to have expressed what the decree is going to be. It consequently relates back and operates from the date of the judgment. The language is so clear that it stands in no need of authority, but if any be needed the following could be perused. In the Owners of the ship "Brenhilda" v. The British India Steam Navigation Company (I L R 7 Cal. 547) the Privy Council observed that‑ "Their Lordships, therefore, think that the date of the decree did not mean the date on which the decree was reduced to writing and signed by the Court but the date on which the High Court delivered their judgment and expressed what the decree was. If the parties intended to appeal, they ought, in accordance with the rule, to have asserted their appeal with fifteen days from the date of the decree by declaring in Court that they intend to appeal; and that they did not do." In Narsingrao Konher Inamdar and another v. Bandu Krishnrs Kulkarni (A I R 1918 Bom. 217) one finds the following observation in the report:‑ "The decree was made under the old Code of 1882, of which, section 205 enacted that 'the decree shall bear date the day on which the judgment was pronounced'. That language seems to me to be imperative, and indeed be designed to meet precisely a case of this sort where owing to certain oversights or irregularities a delay has intervened between the delivery of the judgment and the formal drawing of a correct decree. But if I am right in thinking that the decree is to be referred to 17th November 1847, and not 20th January 1899, then admittedly the application is out of time in regard to the sums I have specified." Similarly a Division Bench expressed itself as follows in Venkataraya Goundan v. Mallappa Goundan and others (A I R 1946 Mad. 348): "That contention was rejected by the learned Judges as under Order XX, rule 7, Civil P. C. the decree must bear the same date as the judgment. In the present case also the date of the decree has to be construed as 23rd December 1925 the date of the judgment." In this case, therefore, the date of the decree shall have ro be 19‑1‑1957 the date on which the Court passed the order authorising the drawing up of a final decree and it shall be deemed to bear that date and not 15‑5‑1961 when it was formally drawn up. To this extent the decree was not in conformity with the judgment. I may as well point out that the date 15‑5‑1961 which appears on the final decree is inscribed under the signatures of the Senior Civil Judge and seems to be in his own hand and by his pen. It ostensibly relates to the day on which it was signed and, in fact, it is the date of the signature. This would indicate that in fact the decree bears no date within the meaning of Order XX, rule 7 of the Civil Procedure Code. Since the law itself provides the date for a decree there should be no difficulty even otherwise in lawfully assuming that the date of the decree is 19‑1‑1957. (D): This brings us to the next question whether the application: for execution was moved by the decree‑bolder in time. Article 182 of the Limitation Act provides a period of three years from the date of the decree. Three years from 19‑1‑1957 would expire on 18‑1‑1960. The application for execution in this case was presented on 13‑6‑1961. It was, therefore, ostensibly barred by the Limitation Act and could not have been proceeded with. (E): The decree‑holder was no doubt a Banking Company with the definition given in section 5(c) of the Banking Companies Ordinance, 1962. Section 73 of this Ordinance runs as follows:‑‑ "73.‑(1) Notwithstanding anything to the contrary contain ed in the Limitation Act, 1908, or in any other law for the time being in force, in computing the period of limitation prescribed for a suit or application by a banking company which is being wound up, the period commencing from the date of the presentation of the petition for the winding up of the banking company shall be excluded. (2) Notwithstanding anything to the contrary contained in the Limitation Act, 1908, or section 235 of the Companies Act, 1913, or in any other law for the time being in force, there snail be no period of limitation for the recovery of arrears of calls from any direction of a banking company which is being wound up or for the enforcement by the banking company against any of its directors of any claim based on a contract express or implied; and in respect of all other claims by the banking company against its directors, the period of limitation shall be twelve years from the date of the accrual of such claims or five years from the date of the first appointment of the liquidator, whichever is longer. (3) The provisions of this section, in so far as they relate to banking companies being wound up, shall also apply to a banking company In respect of which a petition for the winding up has been presented before the commencement of this Ordi nance." On a cursory reading one is bound to be carried away by the impression that this provision would extend the period of limitation in the instant case In so far as the application for execution was presented after the presentation of the petition for the winding up of the banking company. We have already taken note of the fact that the Bank went into liquidation on 29‑5‑1952 and the application for execution was presented on 13.6‑1961. Section 73, subsection (1) only postulates the exclusion of a certain period in computing the period of limitation prescribed for a snit or application. This is plainly prospective in the sense that the period of limitation In suits or applications filed by Banking Companies covered by section 77 after the coming into effect of this Ordinance the period referred to above would be excluded. There is no indication in subsection (1) that it is to be applied retrospectively In the sense that suits and applications which have been presented by a banking company before the date the Ordinance came into force will be benefited by this provision even If they had already become barred by time. This interpretation finds support from the fact that subsec tion (3) of this very section makes the section retrospective to the extent that it shall relate also to banking companies in respect of which the petition for the winding up has been presented before the commencement of this Ordinance. Having so clearly made a provision for including companies which would have otherwise not been included in section 73 there is no reason why the Legislature would not have also similarly provided for the applicability of the provision of this section to cases which had already become barred by time irrespective of whether they had been dismissed on this ground or were still pending. The reticence of the law‑givers in making such a provision is fully understandable because the Legislature is loath to legislate in a manner whereby the enactment operates to prejudicially affect vested rights, or the legality of past transactions. We need not, therefore, dilate further on this question. In our opinion, section 73 is not applicable to cases in which the period of limitation had expired before this law came into operation. (F): We will now pass on to the question whether it was the duty of the Official Liquidator of the Bank to apply to the Court for bringing the legal representatives of Dilawar Ali deceased on record during the pendency of the execution proceedings before the Civil Judge. Order XXII deals with the question of abatement. Order XXII, rule 3 provides for the procedure in case of the death of one or several plaintiffs or of the sole plaintiff. Sub‑rule (2) provides that if an applica tion for bringing the legal representatives of the deceased plaintiff on record is not made within the time limited by law the suit shall abate so far as the deceased plaintiff is concerned. The burden is consequently not on the defendant because he has nothing to lose. The surviving plaintiff may also not have anything to lose by not bringing the legal representatives on the record, but if the defendant is in a position to show that the deceased plaintiff was a necessary party, the suit will be dismissed for failure to implead such a party. Rule 4 deals with a case where one of the defendants dies and the right to sue does not survive against the surviving defendant alone. Sub‑rule (3) requires that if an application is not made within the time limited by law for bringing on record the legal representatives of the deceased defendant, the snit shall abate as against the deceased defendant. By virtue of the provisions of section 141 this procedure would ordinarily be applicable to execution proceedings also. Order XXII, rule 12, creates an exception by enunciating that nothing in these two rules shall apply to proceedings in execution of a decree or order. The result consequently is that although it was the duty of the Official Liquidator of the Bank to apply for bringing the legal representatives of Dilawar Ali deceased on record during the pendency of the execution proceedings before the Senior Civil Judge, his failure to do so would not F result in the abatement of the execution proceedings because of the operation of Order XXII, rule 12 of the Code of Civil Procedure. It may be made clear here that it would not be correct to say that it was the duty of the judgment‑debtor, as an objector, to move for bringing on record of the legal representatives of Dilawar Ali deceased. Had Order XXII, rule 12 not exempted such proceedings from the operation of the Order it would be a defendant in a suit and the respondent in an application who would have to move. In execution proceedings the decree‑holder moves the Court as the petitioner, the objector is a respondent and does not become a petitioner merely by filing objections which are in the nature of a reply to the application for execution just as in a suit simply by presenting a written statement, a defendant does not convert himself Into a plaintiff. (G): We are now to consider the effect of Dilawar Alt's death on the order passed by the Senior Civil Judge which became the subject‑matter of C. O.

118. It has already been seen that merely on account of the death of Dilawar Ali the proceedings did not abate. The only effect of the death would, therefore, be that the order passed by the learned Senior Civil Judge would not be effective against the legal representatives of Dilwar Ali deceased. If, however, it would be demonstrated that the interest of the judgment‑debtors was inseparable or that the decree could be executed only as against all the legal representatives and not just some of them, as there is no period of limitation prescribed for bringing legal representatives on record in execution proceedings, it would have been open to the decree‑holder to have applied at any stage for such Inclusion. In any case, the law is that even a decree passed after the death of a party to a suit or appeal is not an absolute nullity. "It is not void nor it is open to collateral attack but it is erroneous and liable to be set aside. The mistake can be rectified if the Court sets aside the proceedings taken after the death of the deceased and directs that the case be retried in the presence of the legal representatives from the stage which it had reached immediately before the death" (Allah Rakha v. Noor Hussain (P L D 1967 Lah. 594)). It would be possible only if the period of limitation for bringing the legal representatives on the record was still running. There being no limitation for bringing legal representatives on record in execution proceedings such an order could have been made by the executing Court at any time. It need not be r..iterated here that where the judgment‑debtor dies during the pendency of an application for execution a fresh application for execution is not necessary for proceeding I against the legal representatives of the deceased. (Bai Premabai v. Jivandas Vallabhram (A I R 1936 Bom. 456)). Hence the bar contained in section 48 to the presentation of afresh application to execute a decree after the expiry of twelve years from the date of the decree sought to be executed would not have been attracted. The decree‑holder did not care to move the executing Court for impleading the legal representatives at all and the result is that the interest of the legal representatives of the deceased continued to be unharmed by the execution proceedings. The order of the Senior Civil Judge was consequently valid and did not suffer from any defect on this ground but it would be effective only in the case of the judgment‑debtors who were represented before him. (H): Order XXII, rule 12 only excludes proceedings in execution of a decree or order from the operation of rules 3, 4 and

8. Rule 12 does not apply to appeals arising out of orders in execution because an appeal against such an order is not itself) a proceeding in execution of a decree or order. Reference may in this connection be made to Ajudhia Pershad Ram Pershad v. Sham Sunder and others (A I R 1947 Lah. 13) a Full Bench decision. It was held that‑ "Nor the same reason it is obvious that the appeal must abate in toto for failure to bring the legal representatives of Mr. Singhal on the record within time. The interest of all the decree‑holders in the sale proceeds was a joint interest and a decision which will not be binding on one or more of them will inevitably result in contradictory orders with respect to the same subject-matter." Had Dilawar Ali died during the pendency of the appeal, the appeal would have bated in toto. In this case he died much before this appeal was filed. So far as he is concerned, it was an appeal against a dead person. The question now is as to the effect of the non‑inclusion of Dilawar Ali's legal representatives who were obviously a necessary party in the appeal. It would be a case, therefore, of non‑joinder of necessary parties and the penal consequences prescribed in the Code of Civil Procedure would automatically follow. The provisions of Order I, rule 10 are subject to the law of limitation and it could not be open to the appellant to have them Impleaded if the limitation for filing the appeal against the order of the learned Senior Civil Judge had expired. No application was presented during the period of limitation wherefore the first appeal abated in toto as the matter involved was inseparable. The net result is that the appeal is accepted, the order of the learned Single Judge is reversed and that of the learned Senior Civil Judge is restored. The execution application consequently stands dismissed with costs throughout. K. B. A. Appeal accepted.