Patna High Court
Sardar Ram Singh And Ors. vs Khirodhan Devi on 12 November, 1962
Equivalent citations: AIR1963PAT151, AIR 1963 PATNA 151
Bench: V. Ramaswami, N.L. Untwalia
JUDGMENT Untwalia, J.
1. This is a miscellaneous first appeal by the decree-holders from the judgment and order dated the 10th October, 1958, passed by the 3rd Additional Subordinate Judge, Hazaribagh, allowing the objection of the judgment-debtor respondent under Section 47 of the Code of Civil Procedure (hereinafter referred to as the Code) and releasing the property in schedule 'kha" of the execution petition from attachment and sale. The appellants filed Money Suit 19 of 1955 against Basudeo Ram, husband of the respondent, for realisation of Rs. 23220/- on the basis of the handnote executed by him on the 2nd of August, 1952. Basudeo died during the pendency of the suit and his widow was substituted as his legal representative. She filed a written statement and contested the suit. It was decreed on the 29th of August, 1957, for the amount claimed with interest and a sum of Rs. 2929/7/- was awarded as cost of the suit with interest at 6 per cent per annum. During the pendency of the suit, the property in question was attached before judgment but, after the decree, an order for its release was passed on 19-9-57 under Order 38 Rule 8 of the Code in Miscellaneous Case 2 of 1955 ('1958' seems to be a mistake in the judgment of the Court below) filed by the respondent.
2. The appellants put the decree in execution and wanted to proceed against the same properly on the ground that the respondent, as the heir of her husband, had come in possession of certain properties belonging to him and had appropriated them. In this execution case, the respondent filed an objection for release of the property taking the stand that it being her personapl property was released in the previous miscellaneous case under Order 58 Rule 8 of the Code and that it was not liable to be attached and sold in execution of the money decree which was passed against her as the legal representative of her husband. The appellants filed a rejoinder to the said petition and it would be useful to reproduce the contents of the said petition in full -
"1. That the objection filed by the objector is frivolous and is fit to be set aside.
2. That a decree for Rs. 26,149-7-0 was passed against the judgment-debtor and she is liable to pay the decretal dues.
3. That the deceased husband of the J. Dr. viz., Basudeo Ram had a mica business at Bargasdah Giridih and on his death the J. Dr. came in possession of 800 mds. of mica of various kinds as his heirs. The value of the said mica would be worth not less than Rs. 36,000/-. The J. Dr. has. sold the entire stock of mica and appropriated the price.
4. That besides this she has inherited mica mines, raiyati lands and other properties from her husband and she is deriving substantial income from the same.
5. That the decree holders state and submit in the alternative as the J. Dr. has not accounted for the said properties and income, she is personally liable to pay the decretal dues and her personal property is liable to be attached and sold."
3. It appears that Basudeo Ram was joint with his father Karu Ram (A. W. 3) and died in a state of joint-ness leaving behind his widow, the respondent. On a consideration of the evidence adduced by the parties, the Court below has held -
"In this connection it has to be borne in mind that Basudeo Ram had share in the mining property as well as in the culturable land and that property is still in existence. It is argued on behalf of the D. Mrs. that the culturable land is not saleable but from the papers oft record it appears that the mining property left by Basudeo Ram is sufficient to satisfy the debt of the D. Mrs. and It has not been said that the mining property also is not saleable. Therefore, when sufficient property left by Basudeo Ram can still be available to the D. Hrs. for satisfying the debt, they cannot compel the J. Drs. to account for the money which she got or which she might have got by sale of the mica or motor car or out of the produce of the land of her husband's share. I would repeat myself by saying here that she had sufficiently accounted for the price of mica and the price of the motor car and even if she has not given an account of the income from the land, she is not liable to furnish such an account under the law when the D. Hrs. can satisfy their debt from the other property left by Basudeo Ram. In this view of the matter, the D. Hrs. cannot fall back, upon the personal property of the J. Dr. before they have tried to satisfy their debt from the other proprety left by Basudeo Ram which is still in existence".
4. Mr. S. C. Ghosh appearing in support of this appeal has argued that the appellants are entitled to proceed against the personal property of the respondent --- (i) because she is liable to pay personally the decree for cost passed against her in the suit as she contested it; and (ii) under Section 52 of the Code. In my opinion, there is no substance in the first point. At no point of time a stand was taken on behalf of the appellants -- either in their rejoinder petition or at the time of the hearing of the case in the Court below -- that the respondent was liable personally for the amount of cost decreed in the suit; rather the stand taken in the rejoinder petition was that she was liable to pay the entire decretal dues of Rs. 26,149/7/-. That is to say, the nature of the liability under the decree for the payment cither of the handnote dues or of the costs awarded in the suit was the same. Moreover, there is no substance in the point even on merits. There is no warrant in law for taking the view that the legal representative in a suit filed for realisation of the money due from the debtor is personalty liable for the cost awarded in the suit. In my opinion, the entire dercee is a decree for the payment of money and the whole of it can be executed only by attachment and sale of the property of the deceased, unless the case comes under Sub-section (2) of Section 52 of the Code, which reads thus -
"Where no sued property remains in the possession of the judgment-debtor and he fails to satisfy the Court that he has duly applied such property of the decessed as is proved to have come info 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".
It is obvious in this case that, according to the statement made by the appellants in paragraph 4 of the rejoinder petition as also according to the finding of the Court below, the appellants cannot proceed against the personal property of the respondent under the said provision of law, because considerable property of the deceased is in the possession of the judgment-debtor. The second point, therefore, also, as urged on behalf of the appellants, is devoid of substance.
5. In order to overcome the obvious difficulty in the way of the appellants to bring their case under Section 52(2), two submissions were made by their learned Advocate. Firstly, he contended that the respondent, A. W. 2, admitted in her deposition that she was not in possession of any property of Basudeo Ram. I do not find any substance in this contention. What she meant to say in her deposition was that she was not in actual, physical possession of the property as she being a pardanashin lady was not looking after it; her father-in-law was managing the property. There cannot, therefore, be any doubt, as has been held by the Court below, that in the eye of law she is in the possession of the property of the deceased, as 'possession' spoken of in Sub-section (2) of Section 52 is possession in law and not merely actual, physical possession. The second submission was that neither the culturablc land nor the mica mine was liable to be attached and sold in execution of the decree, the former because of the provision of Section 47 of the Chotanagpur Tenancy Act and the latter in view of the decision of this Court in Dhirendra Math Chandra V. Satish Chandra Gorain, AIR 1956 Pat 4. 1 have no hestation in rejecting this contention- either. The point has not been fully and appropriately raised in the Court below, and in the present proceeding necessary facts have not been found in support of the contention raised before us. I may also add that there is no absolute, bar in the way of the decree-holders in getting the mica mine attached and sold in execution of the decree; it is, only subject to certain conditions as pointed out in the case reported in AIR 1956 Pat 4. Moreover, it seems to be doubtful whether a decree-holder is entitled to proceed against the personal property of the legal representative of the decease ed under Section 52 (2) C. P. C. merely because the property of the deceased in possession of the judgment-debtor is not liable to be attached and sold in law.
6. in the result, I hold that there is no substance in the appeal. It is accordingly dismissed with costs.
Ramaswami, C.J.
7. I agree.