Kerala High Court
Nagappan Nair vs Sreedevi Madhavan Unnithan on 3 November, 2010
Author: Thomas P.Joseph
Bench: Thomas P.Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP(C).No. 556 of 2010(O)
1. NAGAPPAN NAIR, S/O.CHELLAPPAN PILLAI,
... Petitioner
Vs
1. SREEDEVI MADHAVAN UNNITHAN,
... Respondent
2. DHANYA,
For Petitioner :SRI.R.GOPAN
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :03/11/2010
O R D E R
THOMAS P. JOSEPH, J.
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O.P.(C) No.556 of 2010
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Dated this the 3rd day of November, 2010.
JUDGMENT
The decree holder in E.P.No.157 of 2009 in O.S.No.432 of 2001 of the court of learned Additional Munsiff-I, Neyyattinkara is the petitioner before me. He sued respondents on the allegation that their predecessor in interest had borrowed certain amount from him and failed to repay the same. Since the borrower died his legal heirs were impleaded in the suit as defendants and the suit ended in a decree. Pursuant to that decree, petitioner filed E.P.No.157 of 2009 and wanted to attach salary of respondent No.2 at the rate of Rs.5,000/- per month. Executing court directed petitioner to proceed against estate of the deceased borrower (if any) in the hands of respondents. That order is under challenge. Learned counsel submits that the decree permits petitioner to realise the amount from respondents and their assets and hence executing court was not correct in directing petitioner to realise the amount from the assets of predecessor in interest of respondents.
2. The power under Article 227 of the Constitution is supervisory when the subordinate courts have committed a mistake or error and that is required to be corrected. The purpose of that provisions is to keep the subordinate courts within their bounds. Here, though the decreetal portion of the judgment and the decree also state that petitioner is permitted to recover the amount from the OP(C) No.556/2010 2 respondents and their assets it is relevant to refer to paragraph No.7 of the judgment (Ext.P1) in the suit where it is stated that respondents being legal heirs of the deceased borrower are liable to make repayment of the amount out of the properties belonging to the deceased borrower which devolved on them. No doubt, the decreetal portion of the judgment permits recovery of amount from the respondents and their assets. Question is whether ignoring the provisions of law and what learned Additional Munsiff has observed, in accordance with the law on the point in paragraph No.7 of the judgment, petitioner be permitted to realise the amount personally from respondents. Section 52 of the Code of Civil Procedure (for short, "the Code") makes it clear that when a decree is passed against legal heirs (of the borrower) it could be executed against assets of the deceased borrower in the hands of the legal heirs. It is in tune with Section 52 of the Code that learned Additional Munsiff has observed in paragraph No.7 of the judgment that respondents are liable to make repayment of the amount from out of the property belonging to the deceased borrower and which has devolved on them. It is accordingly that learned Additional Munsiff has directed petitioner to proceed against assets if any of the deceased borrower in the hands of respondents. There is nothing illegal and, in fact the direction is in accordance with Section 52 of the Code.
3. It is contended by learned counsel that respondent No.2 got a job on compassionate ground consequent to the death of borrower and hence salary of respondent No.2 could be attached. I am not inclined to think that the job secured by respondent No.2 on compassionate ground is an asset of OP(C) No.556/2010 3 deceased borrower in the hands of respondent No.2. If respondent No.2 has got a job on compassionate ground, that is as per the scheme framed by the Government to help dependants of the employees who die while in service. That job cannot be treated as an asset of the deceased employee which has devolved on his dependants.
4. If the argument of petitioner were to be accepted and the decree were to be executed strictly in accordance with what the decreetal portion states against respondents personally, it will be a violation of Section 52 of the Code. I do not think that the power of this Court is to be used to commit a blatant violation of law. I do not find reason to interfere with Ext.P7, order.
Petition is dismissed.
THOMAS P.JOSEPH, Judge.
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