ORDER
B.P. Jha, J.
1. The Judgment-debtors preferred this Civil Revision Petition against the order dated 11th Jan. 1978, By this order the court below held that the provisions of Order 22 Rr. 3, 4 and 8 do not apply in view of Order 22 Rule 12 of the Civil P. C. (hereinafter referred to as the ‘Code’).
2. Order 22 Rule 12 of the Code provides that Rr, 3, 4 and 8 of Order 22 shall not apply to the proceedings in execution of a decree or order. In this case an ejectment decree under Section 11 of the Bihar Buildings (Lease, Rent and Eviction Control) Act, 1947 (hereinafter referred to as the Act) was passed bv the trial court on 30th Sept. 1966. The judgment-debtors, who were defendants in the trial court, preferred Title Appeal No. 48 of 1966. During the pendency of appeal the original plaintiff Chaturbhuj Mahto died leaving behind the opposite parties as heirs. These opposite parties were substituted in appeal as heirs of Chatur-bhuj Mahto,
2-A. By the Judgment and decree dated 15th Nov. 1975 the 3rd Additional District Judge dismissed the appeal,
3. On account of the death of Chatur-bhuj Mahto, the heirs of Chaturbhuj Mahto (opposite parties) applied to the executing court on 5th May, 1977 for permitting them to prosecute the execution of the decree.
4. On these facts the court below permitted these opposite parties to pro-
secute the execution of decree by an order dated 11-1-1978. Against this order the judgment-debtors (defendants) have moved this court to set aside the impugned order dated llth Jan. 1978.
5. The question for consideration is whether the provisions of abatement apply to the execution proceedings or not ? It is conceded by the learned counsel for the petitioners that in view of Order 22 Rule 12 the provisions of Rr. 3, 4 and 8 of Order 22 do not apply to the proceedings in execution of a decree. Hence it is conceded that there is no question of abatement.
6. Learned counsel for the petitioners contends that the petition for prosecuting the execution application ought to have been filed within three years when the right to apply accrued. In other words, he contends that Article 137 applies to the facts of this case. In my opinion there is no question of application of Article 137 of the Limitation Act in the present case. Relevant Article is Article 136 of the Limitation Act, 1963 which provides period of 12 years as limitation for executing the decree when the decree becomes enforceable. According to the learned counsel for the petitioners the decree became enforceable on 15th Nov. 1975 as the decree of the trial court merged in the appellate court decree. The trial court decreed on 30-9-1966. In view of the fact that these opposite parties were the decree-holders by the decree of the appellate court they are entitled to prosecute the decree after the death of their father. By virtue of the application, these opposite parties are seeking permission to execute the decree in place of their father. While the execution petition was pending these opposite parties moved an application for permitting them to prosecute the decree within 12 years from the date of the decree. In the circumstances I hold that Article 137 of the Act does not apply to the facts of this case. The relevant Article is Article 136. By virtue of Article 136 any decree-holder can move for executing decree within 12 years when the decree order becomes enforceable.
7. In this connection learned counsel for the petitioners relies on a Full Bench decision in Hakeem Syed Mohd. Taqi v. Fateh Bahadur Singh (AIR 1929 Pat 565) (FB). In that decision the majority Judges suggested that an application can be made by the heirs within the period of limitation as prescribed by Article 181 of the Indian Limitation Act. It was the
suggestion of their Lordships. The point raised was not specifically decided by their Lordships in that decision. It is relevant to quote the opinion of the majority judges which runs as follows :–“Such application can be made at any time within the period of limitation provided by the residuary Article 181, Lim. Act, viz. 3 years from the time when the right to apply accrues”. In that decision their Lordships had not to consider Article 136 of Limitation Act 1963 or Section 99-A of the Civil P. C. Hence “I hold that the ratio decided in that case does not apply to the present case,
8. There is another aspect of the matter and that is this. By virtue of Section 99-A of the Civil P. C. no order under Section 47 shall be reversed or substantially varied, on account of any error, defect or irregularity in any proceeding relating to such order, unless such error, defect or irregularity has prejudicially affected the decision of the case. In my opinion, no prejudice has been caused to the defendants judgment-debtors by the impugned order. The finding of ejectment is in favour of the decree-holders and as such the decree has to be executed in accordance with law. Hence I hold that the court below exercised the jurisdiction which was vested in it by law and it is not the question of jurisdictional error. Hence, I do not intend to interfere with the impugned order in question.
9. In the result, the revision application is dismissed. The parties will bear their own costs.