OSEAS SALES DIAS Vs. ETHEHELVINA ARCANJALA ESOUZA

JUDGEMENT

(1.) THIS is an appeal against the order dated 11th December, 1995, passed by the Civil Judge, Senior Division, Panaji, in Execution Application No. 29/86/a. By the impugned order, the application of the decree-holders dated 23rd February, 1993, for attachment of goods lying in the shop of the judgment-debtors situated near the Head Post Office at Panaji was allowed and the goods therein were ordered to be attached. Aggrieved by the said order, the appellants have filed the present appeal mainly on the ground that the shop in question was in possession of the appellant No. 1 pursuant to a registered Gift Deed dated 6th April, 1972, by the original judgment debtor late Joaquim Milagres Piedade Dias and his wife late Angela Dias and that, therefore, the trial Court erred in allowing the application and ordering the attachment of the said goods lying in the said shop.

(2.) SHRI S. S. Usgaonkar, learned Advocate appearing for the respondent Nos. 1 to 3, who are the decree-holders, sought to raise a preliminary objection regarding the maintainability of the appeal on the ground that the impugned order is not appealable. On the other hand, Shri L. V. Talaulikar, learned Advocate appearing for the appellants, submitted that the impugned order having been passed in exercise of powers under Order XXI, Rule 58 (3) and the provisions contained in section 50 of C. P. C. , the impugned Order is deemed to be a decree and, therefore, is an appealable order. Without prejudice to this submission, Shri Talaulikar further submitted that in case the appeal is not maintainable, then the appellants should be permitted to convert the same into a revision application as the impugned Order is dated 11th December, 1995, and an attempt on the part of the appellants to file a revision application at this time will be barred by the law of limitation.

(3.) UPON hearing the Advocates for the parties and on perusal of the records, it is seen that the respondents 1 to 3 herein filed a suit for recovery of a sum of Rs. 40,000/- from the original judgment-debtors, namely, late Joaquim Milagres Piedade Dias and late Mrs. Angela Dias. During the pendency of the application it appears that the original judgment-debtors expired and their legal representatives were brought on record. The appellants are the legal representatives of the original judgment-debtors. During the pendency of the said execution proceedings, the respondents 1 to 3 filed an application dated 23rd February, 1993, praying for attachment of the goods of the judgment-debtors lying in the shop under the name and style of J. M. P. Dias situated near Head Post Office, Panaji. The said application was objected to by the legal representatives of the original judgment-debtor Mrs. Angela Dias, on the ground that no property of the deceased judgment-debtor Angela Dias had come in the hands of the legal representatives and that the suit shop was gifted by the said Angela and her husband Joaquim to their son, the appellant No. 1 herein by a Deed of Gift dated 6th April, 1972, besides, it was also submitted that in any case liability of the legal representatives cannot exceed 1/10th of the decretal amount. The Executing Court, after hearing the parties, by the impugned order held that there is no dispute as regards the fact that the appellants and the respondent Nos. 6 onwards to be the legal representatives of the said Angela and, therefore, they step in the shoes of the original judgment-debtor. The Executing Court, therefore, while rejecting the objection raised by the appellants allowed the application dated 23rd February, 1993, and ordered the attachment of goods in the shop under the name and style of J. M. P. Dias situated near Head Post Office, Panaji, in order to satisfy the decree.