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Chekka Suryanarayana, Receiver Of R.B. ... vs Yenumulla Rajyalakshmi Devi Amma on 17 November, 1949 cites

Indro Narain Gossami vs Ishan Chunder Bandopadhya on 26 February, 1883

2. There is nothing in the language of Section 52, Civil P, C., to suggest that the Court has a discretion, in the matter, and this argument must, therefore, be rejected. In support of his first point that all the properties of the deceased mortgagor should be exhausted before the assets in the hands of the respondent could be proceeded against. Mr. Narasaraju referred to the decisions in Indro Narain v. Kristo Chunder, 14 W. R. 362 and Bhagwati v. Madan Mohan, A. I. R. (17) 1930 Lah. 354 : (121 I. C. 289). The first case has no application because Section 203 of the Code of 1859 on the language of which that decision was based differs on the point that is now relevant in material respects from the language employed in Section 52 of the pre-sent Code of Civil Procedure. Section 203 of the Code of 1859 required the decree-holder to satisfy the Court that no property of the deceased could be found such as he could attach and sell in execution of his decree. Such a comprehensive restriction is not to be found in Section 52 of the present Code. In the second case, the High Court remitted the matter for an enquiry into the question whether any property of the deceased debtor other than that which it was alleged the legal representatives had disposed of was in their possession. The order of remand therefore postulated that if other property of the deceased existed in the hands of the legal representatives, it would have to be proceeded against first. In the case before us, it is not alleged that there is any other property of the deceased mortgagor in the hands of the respondent against which the appellant could proceed. It remains to add that in both these cases the legal representatives were dealt with collectively and the individual liability of the different legal representatives did not arise for determination.
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