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2012 DIGILAW 2066 (MAD)

Gowri Pandiyanathan v. M. Chokkalingam

2012-04-25

G.RAJASURIA

body2012
Judgment :- 1. Inveighing and challenging the order dated 04.01.2012 passed by the learned Additional District Sessions Judge, Fast Track Court-2, Salem in REP No.45 of 2010 in O.S.No.122 of 2004, this civil revision petition is focussed. 2. Compendiously and concisely, the relevant facts absolutely necessary and germane for the disposal of this revision petition would run thus: (i) The first respondent herein-M.Chokkalingam filed the suit O.S.No.122 of 2004 for recovery of money, which he deposited with the father of the defendants. After contest, the decree was passed; as against which no appeal was filed. Thereafter E.P was filed for attachment and sale of the property left behind by M.S.P.Rajes, the father of the defendants; it appears counter was filed; thereupon, order was passed by the court to the effect that the property referred to in the schedule shall be attached and the property be sold for recovering the decreetal amount. (ii) Being aggrieved by and dissatisfied with the said order, this revision has been filed on various grounds. 3. Heard both sides. 4. The learned counsel for the revision petitioner by placing reliance on the grounds of revision would develop his argument to the effect that the property was not attached and hence without attaching the property, court sale cannot take place. The revision petitioner/D6 is having ¼ th share in the property and that cannot be attached and sold for recovering the amount. The decree is not in commensurate with the judgment as in the decree it is stated that the property of the deceased Rajes should be proceeded against for recovering the amount. Accordingly, the learned counsel for the revision petitioner would pray for setting aside the order passed by the court below. 5. Whereas the learned counsel for the first respondent would submit that absolutely there is no merit in this revision. The lower court correctly passed the order warranting no interference in this revision. 6. The points for consideration are as under: 1. Whether there is any difference between the judgment and the decree passed by the lower court? 2. Whether the lower court without intending to attach the property is going to sell the property concerned? 7. A mere running of the eye over the judgment as well as the decree of the lower court would evince and evidence that absolutely there is no difference between the judgment and the decree. 2. Whether the lower court without intending to attach the property is going to sell the property concerned? 7. A mere running of the eye over the judgment as well as the decree of the lower court would evince and evidence that absolutely there is no difference between the judgment and the decree. The contention on the side of the revision petitioner is that in the judgment there is no reference to the property to be proceeded against; whereas in the decree, there is such reference. 8. Section 50 of the Code of Civil Procedure is reproduced here under for ready reference: "50. Legal representative (1) Where a judgment-debtor dies before the decree has been fully satisfied, the holder of the decree may apply to the Court which passed it to execute the same against the legal representative of the deceased. (2) Where the decree is executed against such legal representative, he shall be liable only to the extent of the property of the deceased which has come to his hands and has not been duly disposed of; and, for the purpose of ascertaining such liability, the Court executing the decree may, of its own motion or on the application of the decree-holder, compel such legal representative to produce such accounts as it thinks fit." Indubitably and indisputably, unarguably and unassailably the amount was deposited by the plaintiff with the deceased father of the defendants and now the defendants are proceeded against for recovering such amount only. Hence, in such a case, the defendants cannot be made personally liable at the first instance. Section 50 of the Code of Civil Procedure would pellucidly and palpably, obviously and axiomatically make the point clear that the legal heirs could be made liable only in the event of they having after inheriting the property of the propositus, failed to discharge the debt. 9. Here, in this case, the court correctly in its decree ordered that the property of the deceased Rajes should be proceeded against for recovering the amount. In such a case, absolutely, there is no incongruity or inconsistency in the decree. 10. 9. Here, in this case, the court correctly in its decree ordered that the property of the deceased Rajes should be proceeded against for recovering the amount. In such a case, absolutely, there is no incongruity or inconsistency in the decree. 10. A plain reading of the order impugned would display and demonstrate that the lower court correctly at the end ordered thus: “TAMIL” I am at a loss to understand as to how the revision petitioner could put his tongue on his teeth with some amount of certainty and say that the lower court is not intending to conduct sale after attaching the property. 11. Hence, I would like to reiterate that the property should be attached first and thereafter sale has to be effected as per law and in fact, the order of the executing court is also made only to that effect. 12. In the result, I could see no merit in this revision. Accordingly, the same is dismissed. However, there is no order as to costs. Consequently, the connected miscellaneous petitions are closed.