Case Background
This case arises from a very old land dispute linked to a mortgage created in the year 1926. One Mahendra Missir had executed two mortgage deeds in favour of one Nandlal Ojha and others. One of these deeds related to 5.88 acres of land for Rs. 2,500/-. The total mortgaged land was 11.26 acres.
Many years later, some plaintiffs (who are now the decree holders/respondents) claimed that the mortgaged property was partitioned between certain defendants (described as 3rd and 4th parties), and that those defendants sold a 12-anna share of the property to the plaintiffs through three sale deeds dated 24.11.1964. The plaintiffs said they had tendered the mortgage amount, but the defendants refused to accept it.
Because of this refusal, the plaintiffs filed Title Suit No. 53 of 1968 before the civil court. They sought redemption of the mortgage bond dated 03.07.1926 and delivery of possession. They also asked that, if the defendants did not comply, a final decree be prepared and possession delivered through court.
The defendants in that suit gave a detailed written statement. They said that two mortgage deeds had been executed in 1926 for a total of Rs. 5,000/-, and that it had been agreed that both deeds would be redeemed together. They denied the plaintiffs’ partition story and said the vendors of the plaintiffs had no right to sell Mahendra Missir’s property.
The defendants also claimed that Mahendra Missir had executed a registered will on 19.10.1940 in favour of Baleshwar Mishra, covering properties described in Schedules I, II and III of the plaint. After Mahendra’s death, Baleshwar Mishra is said to have inherited the property, and had the will probated on 29.05.1965. According to the defendants, Baleshwar then executed a registered agreement to sell the entire 11.26 acres to them.
They further argued that the right to redeem the mortgage was lost because no steps were taken within the statutory limitation period, and that the sale deeds relied upon by the plaintiffs were forged, without consideration and executed by persons who had no title. In their view, the plaintiffs had no equity of redemption and there was no mortgagor–mortgagee relationship.
Title Suit No. 53 of 1968 was initially dismissed by the trial court by judgment and decree dated 21.09.1987. The plaintiffs appealed in Title Appeal No. 147 of 1987 before the District Judge, Buxar. On 25.08.2000, that appeal was allowed. The trial court’s dismissal was reversed and a preliminary decree was passed in favour of the plaintiffs.
The defendants then filed Second Appeal No. 400 of 2000 before the Patna High Court. That second appeal is still pending. During its pendency, when the respondents tried to negotiate the sale of the suit land, I.A. No. 2134 of 2001 under Order 39 Rules 1 and 2 CPC was filed, and the High Court ordered maintenance of status quo over the suit land. However, the High Court later clarified that proceedings before the subordinate court were not stayed.
Meanwhile, the plaintiffs moved the trial court for preparation of a final decree. By order dated 25.07.2008 in Title Suit No. 53 of 1968, the trial court allowed this, and a final decree was prepared on 12.08.2008. To execute this decree, the plaintiffs filed Execution Case No. 05 of 2008 before the court of Sub Judge-II, Dumraon, Buxar.
The defendants (now judgment debtors/petitioners) challenged the executability of the decree by filing a petition under Section 47 CPC on 21.05.2011, asking for stay of the execution proceedings. This objection was rejected on 03.09.2016 and was never challenged further, so it attained finality.
The defendants also filed Title Appeal No. 44 of 2008 against the final decree order. That appeal was dismissed for default, and an application for its restoration is still pending. In the second appeal, an application for stay of execution was moved but was dismissed as withdrawn. No stay of execution is operating.
What the Court Examined and Decided
Execution Case No. 05 of 2008 concerns many parties from extended families of the original mortgagor and mortgagees. The final decree list prepared on 12.08.2008 included multiple names, including minors at that time. Over the years, some decree holders and judgment debtors died, and some minors became majors.
On 30.05.2024, the decree holders filed an application before the executing court under Order 22 Rule 4 read with Section 151 CPC. They sought deletion of certain judgment debtors’ names (judgment debtor nos. 33, 34, 44, 55 and 64). By order dated 01.08.2024, the Sub Judge-II, Dumraon rejected this prayer, holding that names could not be deleted without a proper substitution petition.
In response, the decree holders filed a fresh petition dated 14.08.2024. This time, they sought substitution of deceased decree holders and judgment debtors with their legal heirs, and correction of typographical errors, including updating the status of some parties who had been shown as minors but had by then attained majority.
By the impugned order dated 02.09.2024 in Execution Case No. 05 of 2008, the executing court allowed this second petition. It ordered deletion of deceased parties’ names and bringing their legal heirs on record, and permitted correction of some typographical mistakes.
The judgment debtors (petitioners in the High Court) then filed the present Civil Miscellaneous Jurisdiction No. 1411 of 2024, challenging the 02.09.2024 order of the executing court.
On behalf of the petitioners, learned senior counsel advanced several arguments. First, he said that since the earlier application dated 30.05.2024 had been rejected on 01.08.2024 and no liberty was granted to file a fresh petition, the second application dated 14.08.2024 was not maintainable. According to him, the executing court could not revisit the issue.
Second, he argued that the impugned order went beyond the scope of the decree. According to this argument, once a decree has attained finality, any alteration at execution stage amounts to modification of the judgment itself, which an executing court has no jurisdiction to do.
Third, he contended that substitution of legal heirs at this late stage violated limitation and abatement principles. He relied on the Supreme Court decision in T. Gnanavel v. T.S. Kanagraj (AIR 2009 SC 2367), where a decree was held null and void because the defendant died during the suit and his heirs were not brought on record before judgment.
In short, the petitioners claimed that the impugned substitution and corrections were illegal, barred by limitation, amounted to modification of the decree, and that the executing court had exceeded its jurisdiction.
On the other hand, counsel for the decree holders/respondents strongly opposed the petition. He began by stressing that execution proceedings are governed by a different rule regarding death of parties. He relied on Order 22 Rule 12 CPC, which clearly says that Rules 3, 4 and 8 of Order 22 do not apply to execution proceedings.
He also relied on the Supreme Court decision in V. Uthirapathi v. Ashrab Ali (1998) 3 SCC 148, which has been later followed in Varadarajan v. Kanakvalli (2020) 11 SCC 598. These judgments clarify that when a decree holder or judgment debtor dies during execution, there is no fixed time limit to bring legal representatives on record. Execution does not abate; it remains pending and legal heirs can be brought on record at any time during its pendency.
The respondents’ counsel explained that the first application dated 30.05.2024 had only sought deletion of names of some judgment debtors. The executing court rejected it for want of a proper substitution petition. Therefore, the second application dated 14.08.2024 was filed correctly to seek substitution. According to him, there was no question of res judicata because the nature of relief in the two applications was different.
He further pointed out that the substitution involved only judgment debtor nos. 33, 34, 44, 55 and 64, and some decree holders’ heirs, who are from the family of the mortgagors (defendants 3rd, 4th and 5th sets). These defendants had not contested the original suit. The main contesting judgment debtors (defendants 1st set) and defendants 2nd set were not being substituted and would not be affected in any manner by this order.
He also highlighted the petitioners’ conduct. Earlier, the petitioners had approached the High Court in Civil Misc. Jurisdiction No. 840 of 2023, which was dismissed as withdrawn. While doing so, the Patna High Court directed the Sub Judge-III, Dumraon, to dispose of Execution Case No. 05 of 2008 expeditiously and preferably within six months, with reference to the Supreme Court judgment in Rahul S Shah v. Jinendra Kumar Gandhi (2021) 6 SCC 418. According to the respondents, the petitioners have filed multiple petitions and even physically obstructed delivery of possession to delay the fruits of a decree arising from a suit filed in 1968 for redemption of a 1926 mortgage.
After hearing both sides, the Patna High Court examined the legal position. On the petitioners’ argument that the decree was a nullity because of death of a defendant during the suit, the Court noted that this issue had already been raised in the Section 47 CPC application earlier. That objection was rejected on 03.09.2016, and that order attained finality. Therefore, the petitioners could not be allowed to re-open the executability of the decree at this stage.
The Court then turned to the main thrust of the petitioners’ argument—abatement and limitation for substitution in execution. It reproduced Order 22 Rule 12 CPC, which says that nothing in Rules 3, 4 and 8 shall apply to execution proceedings. Relying on the Supreme Court precedent in Varadarajan v. Kanakvalli, and particularly the extracted portion from V. Uthirapathi v. Ashrab Ali, the Court held that:
In execution proceedings, the penalty of abatement does not apply. There is no limitation period for bringing legal representatives of a deceased decree holder or judgment debtor on record. Legal heirs can either continue the pending execution or file a fresh execution application.
On this basis, the Court held that there was no abatement of the execution proceedings and no limitation for substitution of judgment debtors in execution. Therefore, an application under Order 22 Rule 4 CPC earlier rejected would not operate as res judicata against a subsequent proper substitution application, especially when the earlier one was only for deletion of names, whereas the later one was specifically for substitution.
The Court also observed that the persons being substituted at this stage were not connected to the main contesting judgment debtors (defendants 1st set) or the defendants 2nd set. It therefore failed to see how the petitioners, as contesting judgment debtors, were affected by the substitution order. Since they were not prejudiced, they had no real basis to challenge the order.
In conclusion, the Patna High Court held that the executing court had not committed any jurisdictional error or illegality. The order dated 02.09.2024 passed by the Sub Judge-II, Dumraon, Buxar in Execution Case No. 05 of 2008 was affirmed, and the civil miscellaneous petition was dismissed. All pending applications also stood disposed of.
Why This Judgment Matters
This judgment has important practical consequences for people involved in long-running land and mortgage disputes, especially in rural Bihar.
First, it confirms that an execution case does not come to an end just because some parties die during the process. Their legal heirs can be brought on record at any time while execution is pending. There is no automatic “time-bar” or abatement like in normal suits.
Second, the Patna High Court has made it clear that judgment debtors who are not directly affected by a substitution order cannot use such technical points to stall execution. If the main contesting defendants are not themselves being substituted or prejudiced, they cannot block corrections and updates that only involve non-contesting parties.
Third, the Court has signaled that it will not support tactics aimed only at delaying execution of old decrees. This is particularly significant in a case where the original suit was filed in 1968 and the mortgage dates back to 1926. The Court underscored the need to ensure that decree holders receive the fruits of their decrees.
For families in similar situations—where there is a decree for redemption of mortgage or for possession, and the matter has dragged on for decades—this judgment shows that courts can and will allow procedural corrections in execution so that the decree can be implemented, even if multiple generations are now involved.
Legal Issues and Answers
- Issue: Does death of decree holders or judgment debtors during execution cause abatement or bar substitution due to limitation?
Answer: No. Under Order 22 Rule 12 CPC, Rules 3, 4 and 8 do not apply to execution. There is no abatement and no fixed limitation period for bringing legal representatives on record in execution proceedings. - Issue: Could the decree’s executability or validity be re-opened on the basis that a defendant had died during the original suit?
Answer: No. The petitioners had already raised objections to executability under Section 47 CPC, and those objections were rejected on 03.09.2016. That order had become final, so the issue could not be revived in this petition. - Issue: Were the contesting judgment debtors entitled to challenge the executing court’s order allowing substitution of heirs of non-contesting parties?
Answer: No. The Patna High Court found that the petitioners (defendants 1st set and similarly placed) were not affected by the substitution of heirs of non-contesting defendants. Without prejudice to them, they had no valid ground to challenge the impugned order.
Cases Cited by the Court
- V. Uthirapathi v. Ashrab Ali, (1998) 3 SCC 148 – cited and relied upon (as quoted in Varadarajan v. Kanakvalli) to hold that abatement and limitation rules for substitution do not apply to execution proceedings.
- Varadarajan v. Kanakvalli & Ors., (2020) 11 SCC 598 – relied upon for the principle that Order 22 Rule 12 CPC excludes execution from the normal abatement rules.
- T. Gnanavel v. T.S. Kanagraj & Anr., AIR 2009 SC 2367 – cited by the petitioners to argue that a decree is a nullity if a defendant dies during the suit and heirs are not brought on record; distinguished in substance by the Court because executability had already been finally decided.
- Rahul S Shah v. Jinendra Kumar Gandhi & Ors., (2021) 6 SCC 418 – referred to earlier by the High Court while directing expeditious disposal of Execution Case No. 05 of 2008.
Case Details
Case Number: Civil Miscellaneous Jurisdiction No. 1411 of 2024; arising out of Execution Case No. 05 of 2008; original suit Title Suit No. 53 of 1968; Title Appeal No. 147 of 1987; Second Appeal No. 400 of 2000; Title Appeal No. 44 of 2008.
Case Title: Shashi Shekhar Ojha & Ors. v. Pushpa Devi & Ors.
Coram: Hon’ble Mr. Justice Arun Kumar Jha
Citation: 2025 (2) PLJR 759
Advocates:
For the petitioners (judgment debtors/defendants 1st set): Mr. D.K. Sinha, Senior Advocate; Mr. Alexandar Ashok, Advocate.
For the respondents (decree holders/plaintiffs and other respondents): Mr. Jitendra Kishore Verma, Advocate; Mr. Anjani Kumar, Advocate; Mr. Ravi Raj, Advocate; Mr. Achyut Kumar, Advocate; Ms. Shweta Raj, Advocate; Mr. Shreyash Goyal, Advocate.
Nature of the Case: Civil miscellaneous petition (under supervisory jurisdiction) challenging an order of the executing court (Sub Judge-II, Dumraon, Buxar) in an execution proceeding arising from a mortgage redemption suit.
Date of Patna High Court Judgment: 09.04.2025 (CAV judgment; CAV date 29.01.2025)
Impugned Order: Order dated 02.09.2024 passed by Sub Judge-II, Dumraon, Buxar in Execution Case No. 05 of 2008.
Outcome: Civil miscellaneous petition dismissed; impugned execution order affirmed; pending applications disposed of.
Link to judgement ; https://patnahighcourt.gov.in/viewjudgment/NDQjMTQxMSMyMDI0IzEjTg==-BGeybYDUeGo=
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