1 2025:CGHC:11302 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WP227 No. 194 of 2025 1. Laxmi Narayan Mishra (Dead) Through Lrs. 1. Krishna Kumar Mishra S/o Late Shri Laxmi Narayan Mishra Aged About 52 Years R/o Village- Baigandabri, Tah.- Kasdol, Dist.- Balodabazar-Bhatapara (C.G.), (Defendants) 2. Damodar Mishra S/o Late Shri Laxmi Narayan Mishra Aged About 46 Years R/o Vill- Baigandabri, Tah- Kasdol, Dist.- Balodabazar-Bhatapara (C.G.) 3. Meena D/o Late Shri Laxmi Narayan Mishra Aged About 49 Years W/o Shivraj Pandey, R/o Sonarpara Raigarh, Tah And Dist- Raigarh (C.G.) 4. Madhu D/o Late Shri Laxmi Narayan Mishra Aged About 43 Years W/o Mukhteshwar Sharma, R/o Rohinipuram, Raipur, Tah And Dist.- Raipur (C.G.) 5. Rashmi D/o Late Shri Laxmi Narayan Mishra Aged About 40 Years W/o Anshuman Sharma, R/o Vill- Darri, Korba, Tah And Dist- Korba (C.G.) 6. Shakuntala W/o Late Shri Laxmi Narayan Mishra Aged About 72 Years R/o Vill- Baigandabri, Tah- Kasdol, Dist.- Balodabazar-Bhatapara (C.G.) ... Petitioner(s) versus 1. Smt. Rajni Mishra W/o Late Shri Girish Kumar Mishra Aged About 72 Years R/o Vill- Kasdol, P.H. No. 09, R.N. Circle And Tah.- Kasdol. Dist.- Balodabazar- Bhatapara (C.G.), (Plaintiffs) 2. Mandakini D/o Late Shri Girish Kumar Mishra Aged About 51 Years R/o Vill- Kasdol, P.H. No. 09, R.N. Circle And Tah.- Kasdol. Dist.- Balodabazar- Bhatapara (C.G.) 3. Kiran D/o Late Shri Girish Kumar Mishra Aged About 46 Years R/o Vill- Kasdol, P.H. No. 09, R.N. Circle And Tah.- Kasdol. Dist.- Balodabazar- Bhatapara (C.G.) SIDDHANT TAMRAKAR Digitally signed by SIDDHANT TAMRAKAR Date: 2025.03.11 09:40:15 +0530 2 4. Madhuri D/o Late Shri Girish Kumar Mishra Aged About 45 Years R/o Vill- Kasdol, P.H. No. 09, R.N. Circle And Tah.- Kasdol. Dist.- Balodabazar- Bhatapara (C.G.) 5. Ravindra S/o Late Shri Girish Kumar Mishra Aged About 41 Years R/o Vill- Kasdol, P.H. No. 09, R.N. Circle And Tah.- Kasdol. Dist.- Balodabazar- Bhatapara (C.G.) 6. Purneshwar S/o Late Shri Girish Kumar Mishra Aged About 33 Years R/o Vill- Kasdol, P.H. No. 09, R.N. Circle And Tah.- Kasdol. Dist.- Balodabazar- Bhatapara (C.G.) ... Respondent(s) (Cause Title is taken from Case Information System) For Petitioners : Mr. Ravindra Sharma, Advocate For Re spondents : Ms. Anuja Sharma, Advocate Hon'ble Shri Justice Rakesh Mohan Pandey Order on Board 07. 03.2025 Heard on Admission. 1. The petitioners have challenged the order passed by the Second Additional District Judge, Baloda Bazar in Civil Appeal No. 45-A/2018, whereby an application moved by the petitioners under Order 22 Rule 3 of CPC has been rejected. 2. Mr. Ravindra Sharma, counsel appearing for the petitioners would submit that a suit was filed by the original plaintiff for restoration of his possession. The Suit was decreed vide judgment and decree dated 12.03.1993. He would further submit that an application for execution was filed before the learned trial Court and it was dismissed vide order dated 12.04.2018 on the ground that the suit property was not described properly. He would further submit that an appeal was preferred against the order dated 12.04.2018 before the learned District Judge, Balodabazar. He would also submit that during the pendency of that appeal, the original plaintiff, namely, Late 3 Laxmi Narayan died on 02.02.2022. An application under Section 151 read with Order 22 Rule 3 of CPC was moved for substitution of legal representatives on 28.04.2023. He would contend that the application for condonation of delay was not filed along with that application and it was filed subsequently on 17.11.2024 along with an affidavit. He would further contend that the learned appellate Court rejected the application on the ground that it was not moved within the prescribed limitation. He would also contend that the learned appellate Court ought to have taken a liberal approach while deciding the application under Order 22 Rule 3 of CPC. He would further state that the appeal preferred against the rejection of the application of execution is the continuation of that proceeding; therefore, the law of limitation would not attract. In support thereof, he has placed reliance on the judgment passed by the Hon’ble Supreme Court in the matter of V. Uthirapathi vs. Ashrab Ali and others reported in AIR 1998 SC 1168. 3. On the other hand, Ms. Anuja Sharma, counsel appearing for the respondents would oppose the submissions made by Mr. Sharma. She would submit that the application for condonation of delay was not filed along with the application filed under Order 22 Rule 3 of CPC. She would further submit that the proposed decree holders are sons and daughters of the original decree holder, but the application under Order 22 Rule 3 of CPC was moved after one year, and the application under Section 5 of the Limitation Act was not moved along with that application rather it was moved six months after the date of filing of the application, particularly on 07.11.2024. She would also submit that the delay was not explained properly; therefore, the learned appellate Court rejected the application. In support thereof, she has placed reliance on the judgment passed by the 4 Hon’ble Supreme Court in the matter of H. Guruswamy & Ors. vs. A. Krishnaiah since deceased by Lrs., Civil Appeal No. 317 of 2025. 4. I have heard learned counsel appearing for the parties and perused the documents placed on the record. 5. Admittedly, the Civil Suit filed by the original plaintiff (father of the petitioners) for restoration of possession was decreed vide judgment and decree dated 12.03.1993. An application for execution was filed and it was rejected by the learned Executing Court vide order dated 12.04.2018. The original plaintiff preferred an appeal against the order dated 12.04.2018, but during its pendency, he died and the petitioners herein moved an application under Order 22 Rule 3 of CPC on 28.04.2023. It is not in dispute that the application for condonation of delay was not filed along with that application and that was the reason for the rejection of the appeal by the learned Appellate Court. 6. In the application for condonation of delay, they took a plea that the application for condonation of delay was not moved along with the application for substitution of legal representatives and the delay was bonafide. An affidavit was also filed in support of that application. 7. In the matter of V. Uthirapathi (supra), the Hon’ble Supreme Court held that if in execution proceedings, the decree holder dies and his legal representatives do not come on record, then there is no abatement of the execution petition. It is further held that it is open in case of death of the decree holder, for his legal representative to come on record at any time and the execution application cannot even be dismissed for default behind the back of the decree holder's legal representatives. Relevant para 15 is 5 reproduced herein-below:- “15. It is clear, therefore, that if after the filing of an execution petition in time, the decree holder dies and his legal representatives do not come on record - or the judgment debtor dies an d his legal representatives are not brought on record, then there is no abatement of the execution petition. If there is no abatement, the position in t he eye of law is that the execution petition remains pending on the file of the execution Court. If it remains pending and if no time limit is prescribed to bring the legal representatives on record in execution proceedings, it is open in case of death of the decree holder, for his legal representative to come on record at any time. The execution application cannot even be dismissed for default behind the back of the decree holder's legal representatives. In case of death of the judgment debtor, the decree holder could file an application to bring the legal representatives of he judgment debtor on record, at any time. Of course, in case of death of judgment-debtor, the Court can fix a reasonable time for the said purpose and if the decree holder does not file an application for the aforesaid purpose, the Court can dismiss the execution petition for default. But in any event the execution petition cannot be dismissed as abated. Alternatively, it is also open to the decree holder's legal representatives, to file a fresh execution petition in case of death of the decree holder; OR, in case of death of the judgment debtor, the decree holder can file a fresh execution petition impleading the legal representatives of the judgment debtor; such a fresh execution petition, if filed, is, in law, only a continuation of the pending execution petition - the one which was filed in time by the decree holder initially. This is the position under the Code or Civil Procedure.” 8. In the matter of H. Guruswamy (supra), the Hon’ble Supreme Court has held that the court owes a duty to first ascertain the bona fides of the explanation offered by the party seeking condonation. It is further held that the rules of limitation are based on the principles of sound public policy and principles of equity. No court should keep the ‘Sword of Damocles’ hanging 6 over the head of a litigant for an indefinite period of time. Relevant para 16 & 17 are reproduced herein-below:- “16. The length of the delay is definitely a relevant matter which the court must take into consideration while considering whether the delay should be condoned or not. From the tenor of the approach of the respondents herein, it appears that they want to fix their own period of limitation for the purpose of instituting the proceedings for which law has prescribed a period of limitation. Once it is held that a party has lost his right to have the matter considered on merits because of his own inaction for a long, it cannot be presumed to be non-deliberate delay and in such circumstances of the case, he cannot be heard to plead that the substantial justice deserves to be preferred as against the technical considerations. While considering the plea for condonation of delay, the court must not start with the merits of the main matter. The court owes a duty to first ascertain the bona fides of the explanation offered by the party seeking condonation. It is only if the sufficient cause assigned by the litigant and the opposition of the other side is equally balanced that the court may bring into aid the merits of the matter for the purpose of condoning the delay. “17. We are of the view that the question of limitation is not merely a technical consideration. The rules of limitation are based on the principles of sound public policy and principles of equity. No court should keep the ‘Sword of Damocles’ hanging over the head of a litigant for an indefinite period of time.” 9. An application for substitution of legal representatives at the appellate stage was moved by the petitioners on 28.04.2023 and the application for condonation of delay was moved on 07.11.2024. In the application for condonation of delay, the petitioners have not assigned sufficient cause. 10. Admittedly, an application for execution was moved by the decree-holder and it was dismissed. An appeal was preferred which can very well be said 7 to be the continuation of the execution proceeding; during the pendency of that appeal, the original decree-holder died and his legal representatives moved an application for substitution on 28.04.2023. As the Hon’ble Supreme Court has held that in execution proceedings after the death of the decree-holder, there is no prescribed limitation period to move an application for substitution of legal representatives; therefore, in the opinion of this Court, the learned appellate Court committed an error of law in rejecting the application moved by the petitioners for substitution of legal representatives. 11. The provisions contained in Order 22 Rule 12 of CPC would show that the provisions of Order 22 Rule 3, Order 22 Rule 4 and Order 22 Rule 8 of CPC would not apply in the execution of a decree or order. 12. In the matter of H. Guruswamy (supra) the Hon’ble Apex Court held that the court owes a duty to first ascertain the bona fides of the explanation offered by the party seeking condonation, it is a general rule which applies in all proceedings. But, the present is an execution case; therefore, the general principles of law would not apply. 13. Taking into consideration the above-discussed facts and the law laid down by the Hon’ble Supreme Court in the matter of V. Uthirapathi (supra), the order passed by the learned appellate Court dated 21.11.2024 is hereby set-aside. The application moved by the petitioners under Order 22 Rule 3 of CPC is hereby allowed. Consequently, the appeal is restored to its original number. The petitioners would be at liberty to carry out necessary amendments in the file of Civil Appeal No. 45-A/2018 pending before the 2nd Additional District and Sessions Judge, Balodabazar within a period of 15 days. 8 14. Accordingly, the instant petition is hereby allowed. Sd/- (Rakesh Mohan Pandey) Judge $iddhant