Bombay High Court
Bank Of India vs Industrial Polymer on 13 February, 1990
Equivalent citations: (1991)93BOMLR218
Author: Sujata Manohar
Bench: Sujata Manohar
JUDGMENT Sujata Manohar, J.
1. The plaintiff bank filed a summary suit under Order XXXVII Rule 2 of the Code of Civil Procedure against M/s. Industrial Polymer Synthetics & Chemicals, Dhirajlal Ratilal Sanghvi, Ratilal Laxmichand Sanghvi and Indumati Ratilal Sanghvi, defendants Nos. 1, 2 and 3 respectively for recovery of a sum of Rs. 70,029.57 together with interest as set out therein. The suit was filed on April 7, 1987.
2. The suit was in respect of a claim which arose on December 14, 1981. The Plaintiff Bank relied upon various part payments and acknowledgements made from time to time. The last acknowledgement is dated December 18, 1984. The suit of the plaintiff is therefore within time.
3. The plaintiff took out a Summons for Judgment against defendants Nos. 1 and 2 which was made absolute and a decree as prayed has been passed against defendants Nos. 1 and 2 on October 7, 1988. In the course of the proceedings in this Summons for Judgment the plaintiffs learnt that the 3rd defendant had died on October 3, 1986 much before filing of the present suit. Thereupon the plaintiff applied for amendment to bring the heirs of defendant No. 3 on record. The plaint was allowed to be amended by an order dated July 13, 1988. As a result, the 2nd defendant is now sued also in his capacity as an heir of the 3rd defendant, and defendants 3(a) to 3(c) have been added as party defendants in their capacity as heirs of defendant No. 3.
4. The present Summons for Judgment is against the heirs of defendant No. 3 so brought on record, namely, defendant No. 2 in his capacity as an heir of defendant No. 3 as also defendants 3(a) to 3(c). The heirs have pleaded that they are not aware of the liability of defendant No. 3. There is no other defence on merits.
5. It was, however, urged before the learned single Judge that a summary suit cannot be filed against the heirs of defendant No. 3 and the Summons for Judgment is not maintainable. Defendants Nos. 3(a) to 3(c) and defendant No. 2 as an heir of defendant No. 3, relied upon a decision of a learned single Judge of this Court in the case of Rajesh Steel Centre v. Smt. Rashmi K. Agarwal . In that case Parekh J. held that a suit as a summary suit cannot lie against those who are sued as heirs and legal representatives of a deceased person and who are not personally liable. He held that the suit had to be treated as a regular suit in such a case. The learned single judge however, who heard the present summons for judgment, in his order dated August 4, 1989 has expressed his disagreement with the view expressed in the above judgment. He has accordingly referred this Summons for Judgment for consideration by a Division Bench. Accordingly the Summons for Judgment is placed before us.
6. The learned Judge in the case of Rajesh Steel Centre v. Rashmi K. Agarwal (supra) felt that if the legal heirs and representatives were to be directed to give any security under Order XXXVII of the Civil Procedure Code, they may not be able to comply with the order if no liquid assets of the deceased had come to their hands. He felt that if a decree were to be passed against them, it would be inequitable and unjust. He therefore said that the provisions of Order XXXVII will not apply to a suit filed against the heirs and legal representatives of a deceased person. This apprehension of the learned Judge docs not appear to us to be justified.
7. Order XXXVII docs not exclude from its purview a suit where the heirs and legal representatives of a deceased are party defendants. Nor is there any protection under the Civil Procedure Code to the heirs and legal representatives of a deceased defendant from a decree being passed against them, provided of course, that the right to sue them survives. The protection which Section 52 of the Civil Procedure Code gives to the heirs and legal representatives of a defendant is a protection against the enforcement of a decree against them in execution. Under Section 52, 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 such property. The decree can be executed to the extent of the property of the deceased in his hands. This is a protection which is granted at the stage of execution. Hence even in a case where a decree is passed against such an heir or legal representative under Order XXXVII of the Civil Procedure Code, the decree can be executed only to the extent of the estate of the deceased coming to his hands. The apprehension of the learned judge in the case of Rajesh Steel Centre (supra) is, therefore, unfounded.
8. In the case of Lallu Bhagvan v. Tribjuvan Motiram (1889) I.L.R. 13 Bom. 633 (D.B.), a Division Bench of this Court held that the decree against the legal representatives of a deceased debtor can be passed even if they have not inherited any property. If they have not inherited any property, the only result is that the decree can not be executed against them. This is a matter to be decided at the stage of execution. It docs not affect the right of a court to pass a decree. This decision has been followed in the case of Ranjitsingh v. Narmadi [1931] A.I.R. Nagpur 173 where it is held that where an heir of a debtor is sued it is not open to him to raise the plea in course of the suit that he docs not hold the assets of the deceased debtor.
The plea is confined to execution only.
9. In our view, therefore, the difficulty expressed by the learned single Judge in the case of Rajesh Steel Centre v. Rashmi K. Agarwal (supra) is misconceived. A Summary Suit can be filed against an heir and legal representative of a deceased defendant and the provisions of Order XXXVII apply in full to such a suit also. The decree however, can be executed only to the extent of the estate of the deceased in the hands of the judgment debtor. We therefore agree with Variava J. that the summons for Judgment against the heirs of defendant No. 3 is maintainable.
10. In the present case, however, the 3rd defendant was dead at the time when the suit was filed against him. The suit was therefore a nullity qua the dead defendant. The heirs of the third defendant (with the exception of defendant No. 2) have been brought on record on July 13, 1988. Defendant Nos. 3(a) to 3(c) contend that the suit against them which is filed only on July 13, 1988, is barred by limitation. This is a plea which raises a triable issue. Hence unconditional leave is granted to defendants 3(a) to 3(c) to defend the suit.
As far as defendant No. 2 is concerned Summons for Judgment has already been made absolute against him and a decree for the suit amount/has been passed against him. The property which the 2nd defendant may have inherited from defendant No. 3 is as much the property of defendant No. 2 as any other property and hence, is available to the plaintiffs in execution. It is therefore, not necessary for us to pass any separate Order in the present Summons for Judgment as against defendant No. 2.
11. The suit against defendant Nos. 3(a) to 3(c) is transferred to the list of commercial causes.
12. Written statement within 8 weeks.
13. Affidavit of documents 8 weeks thereafter, inspection forthwith thereafter. Suit to be placed on Board for hearing in the 1st week of August 1990.