D KRISHNA SACHI Vs. Y VIJAY LAKSHMAMMA

JUDGEMENT

(1.) The petitioner is thedecree-holder She obtained a money decree in 0 S No 71 of 1979 dated September 6, 1979 from the High Court of Madras. Before decree, admittedly there was an attach- ment before judgment of the schedule mentioned properties i.e. the estate of the deceased debtor Y C Reddy sought to be executed against and the attach- ment was made absolute. After the decree was passed, it was transmitted for execution and the clause (1) of the decree postulates the recovery of dec- retal amount of Rs 1,65,500/- and inte- rest at 10% from the estate of the decea- sed debtor, Y C Reddy in ihe hands of the first defendant, V Madhava Rao and defendants 3 and 4 who are de-facto possessors of the estate of Y C Reddy. As a result, the petitioner filed E P No 26 of 1984 in the Court of V Additional Judge, City Civil Court, Hyderabad, pending execution, the fourth judgment- debtor, the mother of the deceased Y C Reddy died on May 5, 1984 and that fact was intimated by memo filed by her coun- sel in that regard. The Court below directed the petitioner to bring the legal representatives of the fourth respondentjudgme it-debtor relying on Section 52 (2) of the Code of Civil Procedure, 1908, for short ''the Code'' and a decision of the Calcutta High Court in Smt Shanti Devi (Minor) v Khandubala Dasi (1). AIR 1961 Calcutta, 336. Assailing the legality of the order, the Civil Revision Petition is filed.

(2.) Section 50 (1) of the Code postulates that where 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 representative of the deceased. Section 52 (1) of the Code postulates that where a decree is passed against a party as the legal representative of a deceased person and the decree is for the payment of money out of the property of the deceased, it may be executed by the attachment and sale of any such property. Section 52 (2) of the code posits that where no such remains in the possession of the judgment-debtor and he fails to satisfy the Court that he has duly applied such property of the deceased as is proved to have come into his possession, the decree may be executed against the judgment debtor to the extent of the property in respect of which he has failed so to satisfy the court in the same manner as if the decree had been against him personally.

(3.) It is thus clear that Section 50 of the Code would apply only where a decree is passed against the judgment debtor and if he/she dies after the decree or pending execution and the decree holder intends to proceed against the estate of the deceased-judgment debtor, it is mandatory that the legal representatives of the deceased judgment debtor shall be brought on record. Equally, in a case covered by Section 52 (2) where the decree is sought to be executed against the judgment-debtor/judgment debtors, representing the estate of the principal debtor, it shall be proved that (a) the judgment-debtor/judgment debtors is/are in possession of the estate of the principal-debtor ; (b) he/she/they failed to satisfy the Court that he/she/ they has/have duly applied such property to discharge the debt and (c) no such property of the deceased principal debtor remained in his/her/their possession. In such a situation, on the demise of the judgment debtor, his/her legal representatives must be brought on record by the Court that passed the decree before proceeding with the execution against the estate of the deceased judgment-debtor. But in a case when the decree itself has been passed for recovery of the money against the estate of the deceased -principal debtor in the hands of the judgment debtor/judgment debtors, the need to bring the legal representatives of the other judgment debtor or judgment debtors on record, is obviated ; the reason being that any one of them is representing the estate of the principal debtor. But in a case where the decreeholder intends to proceed against the estate of the deceased/judgment debtor/ judgment debtors, then the need to follow the procedure under Section 52 (2) is mandatory.