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Andhra High Court · body

2001 DIGILAW 919 (AP)

Mannava Seethamma v. Chennapati Aruna Devi

2001-08-21

P.S.NARAYANA

body2001
( 1 ) THESE two C. R. Ps. are directed against the orders made in E. P. No. 58/97 in o. S. No. 25/77 and E. P. No. 59/97 in o. S. No. 24/77 on the file of the Senior Civil judge, Parchur. " ( 2 ) THE facts in brief are that the revision petitioners, the Judgment-Debtors 3 and 4, had raised objection to the execution of the decrees passed for realisation of mesne profits on the ground that they are only the legal representatives of the deceased, the defendant Nos. 1 and 2 in the suit and they have not succeeded to any estate of the deceased as such and hence, the respondents-decreeholders cannot proceed against their properties and at the best the amounts can be realised only out of the assets which were left by defendant Nos. 1 and 2, if any. During the enquiry, R. Ws. l to 3 were examined and Exs. B-1 to B-3 were marked, but, the respondents-decree- holders had reported no evidence. On appreciation of oral and documentary evidence, the Court below came to the conclusion that inasmuch as the judgment- debtors 3 and 4 i. e. , the revision petitioners also are parties to the decree, they are bound by the decree and the executing court cannot go behind the decree and hence, the Court below was inclined to proceed with the execution further, without deciding this objection and had posted the matters for sale papers and E. Cs. Aggrieved by the said orders, the present revisions are filed. ( 3 ) MR. G. Peddababu, the learned counsel representing the revision petitioners had submitted that the revision petitioners- judgment-debtors 3 and 4 in fact were impleaded in the suit as D-3 and D-4 as legal representatives of D-1 and D-2 and hence there is no personal decree, even in the suit or in the mesne profits enquiry and hence at the best, if there can be any realisation of the amounts, the respondents- decreeholders are entitled to proceed as against the assets, if any, left by the first and second defendants in the hands of the revision petitioners by virtue of Section 52 of the Code of Civil Procedure. The learned counsel also had drawn my attention to the decrees made in both the suits and also the orders passed in enquiry relating to mesne profits in both the suits. The learned counsel also had drawn my attention to the decrees made in both the suits and also the orders passed in enquiry relating to mesne profits in both the suits. ( 4 ) MR. K. Sarvabhouma Rao, the learned counsel representing the respondents- decreeholders had vehemently contended that the executing Court cannot go behind the decrees and inasmuch as the executing court is bound by the terms of the decrees, the respondents-decreeholders are entitled to proceed against the properties of the revision petitioners-judgment-debtors 3 and 4 as well. The learned counsel also had contended that a distinction can be drawn between the properties of the first and second defendants in the suits and the properties of the revision petitioners- judgment-debtors 3 and 4 since those parties also had been impleaded as defendants in the suits itself. Placing such a restricted inference on the decrees and orders passed in the matter will amount to factual misleading of the decrees and orders and the executing Court cannot go behind the decrees and orders and the executing court is bound to execute the decrees and orders as they stand. The learned counsel had placed strong reliance on V. D. Modi v. R. A. Rehman and Nayanim Varu v. Rama Naidu. Heard both the counsel at length. ( 5 ) IT would be appropriate to look into section 52 of the Code of Civil Procedure. Section 52 of the Code dealing with enforcement of decree against legal representatives reads as follows:"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. to satisfy the Court in the same manner as if the decree had been against him personally. Section 52 (2) of C. P. C. specifically specifies that 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. Sub-section (1) of Section 52 C. P. C. specifies that 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. After reading, both sub-sections (1) and (2) of Section 52 of C. P. C. the words which are relevant for the present purpose are ". . . out of the property of the deceased" and ". . . in the same manner as if the decree had been against him personally". So, it is clear that unless the conditions specified in sub-section (1) of Section 52 C. P. C. are satisfied, the other conditions specified in section 52 (2) of C. P. C. i. e. , ". . . in the same manner as if the decree had been against him personally" may not be taken into consideration by the executing Court. I have carefully gone, through the impugned orders passed in both the C. R. Ps. No doubt, certain factual details have been narrated, but on the aspect of the objection raised by the revision petitioners, the Court below had declined to consider such an objection mainly on the ground that the revision petitioners also are parties even in the suits and the executing Court cannot go behind the decrees. It is pertinent to note that the revision petitioners were not the original parties in the suits, but were brought on record only as legal representatives of the first and second defendants in the suits. It is pertinent to note that the revision petitioners were not the original parties in the suits, but were brought on record only as legal representatives of the first and second defendants in the suits. The preposition of law that normally the executing Court cannot go behind the decree and the decree has to be executed as it is unless there is inherent lack of jurisdiction is well settled. In the present case, for the purpose of appreciation, the decrees passed in the suits and also the orders made in the applications relating to enquiry into mesne profits May be referred to. The decrees in the suits in O. S. Nos. 24/77 and 25/77 or the file of the Senior Civil judge, Purchur, had specified that the defendants put the plaintiffs in possession of the property in the schedule annexed and the mesne profits in respect of suit schedule property will be ascertained and the suit was dismissed as against certain defendants as the claim was given up. In the applications filed for enquiry into mesne profits in both the suits an order was passed which reads "that the petitioners be and hereby entitled for mesne profits at the rate of Rs. 20,454/- each for the years 1974-75 to 1976-77, Rs. 23,376/- each for the years 1978-79 to 1982-83 and Rs. 30,681/- each for the years 1983-84 and 1984-85 that total comes to Rs. 2,39,604/-" and likewise the other order is "that the petitioners be and are hereby entitled for mesne profits of rs. 4,235/- each for the years 1974-75 to 1976-77, Rs. 3,080/- for the year 1978-79, rs. 5,960/- each for the years 1979-80 to 1982-83 and Rs. 9,625/- each for the years 1983-84 to 1984-85 that the total comes to rs. 53,875/-". From a reading of the decrees and the orders made by the Court below, now it has to be looked into whether the executing Court can consider the objection raised by the revision petitioners by virtue of Section 52 of C. P. C. or not. The nature of the orders passed by the Court below during the course of mesne profits enquiry appear to be more declaratory in nature specifying that the respondents- decreeholders are entitled to recover the amounts. It is not in dispute that the respondents-decreeholders are entitled to recover the amounts ascertained in the mesne profits enquiry. The nature of the orders passed by the Court below during the course of mesne profits enquiry appear to be more declaratory in nature specifying that the respondents- decreeholders are entitled to recover the amounts. It is not in dispute that the respondents-decreeholders are entitled to recover the amounts ascertained in the mesne profits enquiry. But the question is whether such recovery can be made by proceeding against the properties other than the properties of the original parties to the suits, the first and second defendants, when an objection of this nature was raised by the legal representatives of first and second defendants. The Court below should have conducted an enquiry relating to the same. Surprisingly, no finding had been recorded in this regard. Apart from it, the respondents have not let in any evidence for the reasons best known to them. In smt. Namita Paul Choudury @ Biswas and another v. Bank of Baroda and another it was held that an order of attachment for sale made without considering an objection raised in view of Section 52 C. P. C. , to be illegal. The same view was expressed in Thiagaraja Iyer v. Narayanaswami Pillai and others. In view of the nature of the decrees and orders made in both E. P. No. 5897 in o. S. No. 25/77 and E. P. No. 59/97 in o. S. No. 24/77 and during the course of mesne profits enquiry, I am of the opinion that the Court below had erred in declining to go into the question raised by way of an objection by the revision petitioners. Inasmuch as no evidence was let in on behalf of the respondents-decreeholders, i am of the view that these matters have to be remitted back to the Court below with a direction to conduct an enquiry relating to the objection raised by the revision petitioners in both the matters after according further opportunity to both the parties in this regard. ( 6 ) FOR the foregoing reasons, the C. R. Ps. ( 6 ) FOR the foregoing reasons, the C. R. Ps. are allowed to the extent indicated above and the matters are remitted back for the purpose of affording further opportunity to both the parties to adduce necessary oral and documentary evidence to substantiate their contentions relating to the objections raised by revision petitioners relating to the execution of the orders as against the properties other than the properties i. e. , the assets of the original parties to the suit, the first and second defendants. The C. R. Ps. are allowed to the extent indicated above. In the circumstances of the case, each party to bear their own costs.