Research › Search › Judgment

Himachal Pradesh High Court · body

2000 DIGILAW 204 (HP)

SULOCHNA DEVI v. UNITED COMMERCIAL BANK

2000-08-03

M.R.VERMA

body2000
JUDGMENT M.R. Verma, J.—This revision petition is directed against the order dated 7.1.2000 passed by the learend Senior Sub Judge, Hamirpur in Execution Petition No. 15 of 1996 titled United Commercial Bank v. Pradhan Singh Parmar (deceased) through his legal representatives, thereby dismissing the objections of the petitioners against the attachment of salary of petitioner No. 1 in execution of the decree passed in Civil Suit No. 96 of 1985 decided on 28.10.1989. 2. Brief facts are that the aforesaid execution petition, at the material time, was pending in the Court of the learned Senior Sub Judge, Hamirpur. By the application for execution of decree, a decree dated 28.10.1989 for recovery of money is being sought to be executed against the present petitioners. On the objection raised by the petitioners, the executing Court vide order dated 18.9.1997 held that the loan amount (borrowed by one Pradhan Singh, predecessor of the present petitioners) could only be realised from the legal representatives of the deceased (the petitioners) if they inherited the property of the deceased (Pradhan Singh). It was further observed that the DH had failed to prove that the legal representatives of the deceased Pradhan Singh i.e. the petitioners have inherited the estate of the said deceased and, therefore, the objector could not be said to have inherited the property. However, the decree holder was given the liberty to realise the outstanding amount under the decree if it was proved that the petitioners had inherited the estate of the deceased and the objections were accordingly disposed of. It appears that earlier to the passing of the aforesaid orders, certain properties, moveable as well as immoveable, were ordered to be attached. When the amount could not be realised, the salary of petitioner No. 1 has been, ordered to be attached. The objections against the order regarding attachment of the salary of petitioner No. 1 on the ground that she has not inherited any property of the deceased borrower Pradhan Singh, were filed which were dismissed by the Executing Court by the impugned order. Hence the present revision petition. 3. I have heard the learned counsel for the petitioners but could not have the advantage of hearing anyone for the respondents for whom no appearance was put in despite service. 4. Hence the present revision petition. 3. I have heard the learned counsel for the petitioners but could not have the advantage of hearing anyone for the respondents for whom no appearance was put in despite service. 4. The operative part of the impugned order reads as follows: "I have considered the respective contentions of both the parties and have scrutinised the record of the case. It is born out from the judgment and decree in civil suit No. 56/91 dated 31.5.1999 of Sub Judge 1st Class (2), Amb, that Shri Pradhan Singh deceased left behind the immovable property which has been inherited by his widown Salochna, JD No. 1, Shri Rocky, and objectors Sadhna and Nitu and as such, I find no merit in tfiese objections which are dismissed as devoid of force. Let necessary attached payment be awaited for 6.3.2000." 5. The question, in view of the aforesaid operative part of the order of the executing Court which arises, is as to whether after having come to the conclusion that there is some immoveable property of the deceased debtor which has been inherited by the petitioners, could the salary of petitioner No. 1 be ordered to be attached? 6. Section 52 of the Code of Civil Procedure reads as follows: "52. Enforcement of decree against legal representative.—(1) 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 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." 7. A bare reading of sub-section (1) of Section 52 (supra) makes it clear that when a decree for the payment of money is passed against a party as a legal representative of the deceased person, it may be executed by attachment and sale of the property of the deceased in the hands of the legal representative. A bare reading of sub-section (1) of Section 52 (supra) makes it clear that when a decree for the payment of money is passed against a party as a legal representative of the deceased person, it may be executed by attachment and sale of the property of the deceased in the hands of the legal representative. In case such property does not remain in possession of the judgment debtor and he fails to satisfy the Court that he has duly applied such property of the deceased which is proved to have come into his possession, only then the decree may be executed against the judgment debtor as if the decree is against him personally to the extent of the property in respect of which he failed to satisfy the Court as aforesaid. 8. Before passing the impugned order, the executing Court did not give any opportunity to the decree holder to prove as to which property of the original borrower Pradhan Singh was inherited by the petitioners nor the parties were called upon to prove as to whether such property is in possession of the judgment debtors (the petitioners) nor any opportunity was afforded to the petitioners to satisfy the executing Court that they have duly applied such property of the deceased, with the result that the executing Court itself has not given any findings whatsoever on the aforesaid aspects of the matter nor it has indicated any reason as to why it thought it proper to attach the salary of petitioner No. 1 if the judgment debtors had inherited any immoveable property from the original debtor. Thus, the impugned order has been passed by the executing Court without satisfying itself as to whether the material requisites as contemplated by Section 52 CPC to execute the decree against petitioner No. 1 as if it was a decree personally against her, were satisfied or not. 9. Since the parties were not afforded any opportunity to prove the existence or non-existence of the required conditions under Section 52(2) CPC, therefore, there is no material on record to decide as to whether the decree in question can be executed against petitioner No. 1 as if it is a personal decree against her. 10. As a result, this revision petition is allowed and the impugned order is set aside. 10. As a result, this revision petition is allowed and the impugned order is set aside. The Executing Court is directed to afford opportunity to the parties to prove their respective averments as made in objection petition of petitioner No. 1 dated 4.6.1999 and the reply dated 29.6.1999 filed thereto by the respondent-decree holder. 11. The records of the Executing Court be returned forthwith. Parties are directed to appear before the Executing Court on 5.9.2000. CMP 52/2000 12. Dismissed in view of the order in the main revision petition. Revision allowed.