1. The Respondent in this appeal is the decree-holder and the appellants are the legal representatives of the original judgment-debtors. The decree obtained by the respondent was a money decree and the question involved in this appeal is whether the execution application presented bye the Respondent on August 16, 1958 was in time. It is admitted that before that execution application was presented, the respondent had presented another application which was dismissed by the executing court on August 16, 1955. But when the second execution application was presented on August 16, 1958 what was contended before the executing court was that since the original judgment-debtor had died on July 23, 195S, the! execution application presented by the respondent should have been presented on or before July 23, 1958 and not thereafter. This novel contention found favour with the executing court with the result that the respondent's execution application was dismissed.
But in the appeal preferred by the respondent, the appellate Court took the only view which was possible in the case and reversing that order of the executing Court, remitted the execution application to that Court so that execution may proceed. The view taken by the appellate court was that under the provisions of Art. 182 (5) of the Limitation Act, the execution application presented by the respondent within three years from the date on which a final Order had been made on the previous application which was undoubtedly made in accordance with law was well within time.
2. Mr. Nagesh Rao appearing on behalf of the appellants contends that since the original judgment-debtor died on July 23, 1955, the order made by the executing court on the earlier execution application on August 16, 1955 is a nullity since there was no valid pending proceeding before the executing court after the date of death of the judgment-debtor in which that Order could have been passed. It is impossible to accede to this contention. Under the provisions of Section 50 of the Code of Civil Procedure, when 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 representatives of the deceased.
Under the provisions of this Section It is open to the decree-holder either to ask the executing court to bring the legal representatives of the judgment-debtor on record or to present another execution petition. Whatever may be the course he chooses to adopt, it would be impossible to say that the moment that a judgment-debtor dies before the decree has been fully executed the execution proceedings pending against that judgment-debtor perish with his death. That execution application still continues to be pending, and if the decree-holder intimate the executing court that since the judgment-debtor Is dead the execution application may be dismissed so that he might present another application, and the Court dismisses the execution application on that submission as was done in this case, the order of dismissal made by the executing court is undoubtedly a final order falling within clause (5) of Art. 182 of the Limitation Act affording to the decree-holder a fresh starting point of limitation from its date.
3. That being so, this appeal is without substance and is dismissed with costs.
4. Appeal dismissed.