Orissa High Court
Laxmidhar Sahu vs Smt. Padmini Tripathy And Ors. on 14 March, 1990
Equivalent citations: AIR1991ORI9, AIR 1991 ORISSA 9, (1990) 1 ORISSA LR 449 (1990) BANKJ 498, (1990) BANKJ 498
ORDER S.C. Mohapatra, J.
1. Decree-holder is the petitioner in this Civil Revision under Section 115, Civil P.C.
2. Judgment-debtors are the widow and two minor sons of deceased Harisadan Tripathy who made a contract with the decree-holder to sale a piece of property for consideration of Rs. 37,000/- and received advance of Rs. 20,300/- as part consideration. Before execution of the sale deed, Harisadan expired. Therefore, decree-holder had to file suit against the widow and the two minor sons of Harisadan for specific performance of contract or in the alternative for refund of the consideration amount with interest. Suit was decreed for refund of consideration of Rs. 20,300/- received with interest at 6% per annum from the date of contract till repayment. In decree, it was directed that in case, the amount is not paid within two months, decree-holder can realise the amount by executing the same.
3. Decretal amount not having been paid, decree-holder levied execution and prayed for realisation of the amount by attaching the salary of judgment-debtor No. 1, the widow who is a lecturer in Ramadevi Women's College, Bhubaneswar. Judgment-debtor No. I filed an objection alleging amongst others that the decretal amount cannot be realised from her salary which can be realised from the assets left by the deceased Harisadan which she and her two minor sons inherited. Executing Court having accepted the said objection of judgment-debtor No. 1, decree-holder has filed this Civil Revision.
4. Mr. Bijan Ray, learned counsel for petitioner relied Upon the decision reported in (1987) 2 Ori LR 620 (Kishore Transport v.
Ashok Leyland Ltd.) and submitted that the decree being passed jointly against the judgment-debtor No. 1 and her two sons personally, her objection that the decretal amount cannot be realised from her salary is not sustainable in law. Mr. Bipin Behari Mohanty, learned counsel for judgment-debtor No. 1 on the other hand submitted that the decision relied upon by the petitioner is distinguishable on facts and decretal amount is to be realised from the property of Harisadan as provided under Section 52, C.P.C. which reads as follows:--
"52. Enforcement of decree against legal representative.
(1) Where adecree 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.
(2) Where no such 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 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."
4A. On a plain reading of Section 52 and applying the same to the present dispute, it will be clear that decree was passed against judgment-debtor No. 1 as legal representative of deceased Harisadan who took the advance for selling the property. However, decree is not clear if the money is to be realised out of the property inherited by judgment-debtor No. 1 or binds the judgment-debtor personally. Therefore, when objection is raised by judgment-debtor No. 1 that the amount can be realised from the property of Harisadan, Executing Court was required to interpret the decree to find if the same is for payment of money out of the property of the deceased. Construction of a decree to find out whether the same is one for payment of money out of the property of the deceased does not amount to going behind the decree, specially when it is not clear whether the same is one as provided under Section 52(1), C.P.C. or personal. In case, the decree would have been unambiguous, there would not have been any difficulty for the executing Court to determine the nature of the decree. Where the decree is not clear. Executing Court is to apply its mind to other materials on record and the law with regard to liability of the judgment-debtor to find out whether the decree is for payment of money out of the property of the deceased.
5. In (1987) 2 Ori LR 620 (supra) facts narrated indicate that the property of the deceased was made the first charge for recovery of dues with a further direction that if the decretal dues cannot be realised from the said immoveable property, then the opposite party shall recover the same from the assets of the legal representative of the judgment-debtor. This is a clear case where the decree itself contains that the amount decreed can be realised from the assets of the legal representative if the same cannot be realised from the charged immovable property of the judgment-debtor. When such a decree became final without being assailed, there is no scope for the legal representative to attract Section 52, C.P.C. where a decree is silent as regards how the decretal amount can be realised, executing Court is required to construe the decree as stated earlier.
6. Admittedly, consideration amount was received by the deceased. In case, he would have been alive, a decree would have been passed against him and not against the judgment-debtors as legal representatives. In such a case money decreed would have been realised from his assets. There would have been no scope for realisation of the amount from salary of judgment-debtor No. I. In case, after the decree, he would have died and the amount would have been sought to be realised from the legal representative, such amount could not have been realised from any assets which does riot belong to the judgment-debtor, If the legal representative would be a son where judgment-debtor and his son are Hindus, question would be different, since there is a pious obligation of the sons under Hindu Law to discharge obligations of their father if the same is not immoral and accordingly, decretal amount could have been realised from the sons. The same principle would not be applicable in the present case, particularly to the Hindu widow. In (1979) 47 Cut LT 513 : (AIR 1979 Ori 130), Saudhamani Dei Mohanty v. Sadananda Mohanty, it has been observed :--
"..... that the widow is not a descendant and she gets her right in the husband's property as a statutory heir. If the widow would not come within the ambit of the phrase other descendant, she would not have liability under Section 53 of the Code....."
This principle has been accepted in (1987) 2 Ori LR 620 (supra). However, the decision was distinguished on account of the facts being different. If legal representative in (1987) 2 Ori LR 620 (supra) would have contested the suit on the ground that being widow and daughters, they were only statutory heirs of the deceased under the Hindu Succession Act, their property could not have been made liable. In absence of such challenge it was held that legal representatives did not take that plea but contested the suit by stating all other pleas which did not find favour with the Court in passing the decree. They did not prefer any appeal against the decree. They made themselves liable for the decretal amount to be recovered from them according to the terms of the decree.
7. As I have already said where the terms of the decree make them personally liable, there is no scope for application of Section 52, C.P.C. Same would be the position in respect of Section 53, C.P.C. Where, however, the decree is silent as to whether the same is personal, Court is to interpret the same. In AIR 1925 Oudh 113 (Kunwar Jung Bahadur v. Lala Gur Prasad), the debt in respect of which decree was obtained was not due from the judgment-debtor but from his deceased father and judgment-debtor was sued for that debt being the legal representative of his father. The question was whether in execution of the decree, any property other than that of the deceased could be proceeded for satisfaction of the decree. Although it was construed that the decree was a personal decree, in the sense that proceeding taken for the satisfaction of the decree was to be taken as against the judgment-debt or, it was held that the decree having been passed in relation to a debt of the deceased father, the judgment-debtor having representative assets of the deceased father, execution was held to proceed against such assets alone. For such a decision, a Division Bench decision of the Patna High Court reported in (1922) 65 Ind Cas 224 (Bujhawan Prasad Singh v. Ramanarayan) was relied upon. Facts of the present case are exactly the same as reported in AIR 1925 Oudh 113 (supra).
8. In ILR (1970) Cut 911 : (AIR 1970 Ori 89) (Susila Dei v. Sridhar Rautray) a suit was filed for refund of consideration money paid to the predecessor in interest of the defendants who sold some properties to the plaintiff. Suit having been decreed, defendants preferred second appeal. One of the questions raised was that the defendants had no personal liability in regard to refund of consideration money. Although the question was not decided, this Court observed (Para 13 of AIR):
"..... I agree with the contention of learned counsel for the appellants that defendant Nos. 2 to 4 cannot be personally liable for this amount of Rs. 200/ -, but will only be liable to pay the same out of the assets inherited by them from Durga Charan."
Thus, under law, Hindu widow being a statutory heir only, could not have been made personally liable for the liabilities of her husband. In case, the decree would have made her personally liable allowing it to become final, she could not have made a grievance in the executing Court that she is not personally liable as in the case reported in (1987) 2 Ori LR 620 (supra). If the decree would have made her personally liable and she would have challenged the same in appeal, appellate Court would have set aside that portion of the decree as has been observed in ILR (1970) Cut 911 : (AIR 1970 Ori 89) (supra), where the decree does not specifically made her personally liable and she has not assailed the same, there is no bar for her to contest in the execution proceeding to the extent that she would not be personally liable since the decree has not made her so liable as normally no Court could have given a decision which is not in accordance with law.
9. In view of the aforesaid discussions, I am inclined to hold that although executing Court cannot go behind a decree, it can interpret a decree where the same is not clear in terms and while so interpreting executing Court is to presume that decree was passed keeping the correct legal position in mind. In spite of the fact that there is no such discussion in the impugned order, I am satisfied that the decision of the executing Court is correct in conclusion and there is no scope for interfering with the same.
10. In the result, there is no merit in the Civil Revision, which is accordingly, dismissed with costs.