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2014 DIGILAW 1536 (HP)

UCO Bank v. Sandhya Devi

2014-10-30

TARLOK SINGH CHAUHAN

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JUDGMENT : Tarlok Singh Chauhan, J. This order shall dispose of an application preferred by the judgment-debtor No.2(v) (hereinafter referred to as the applicant) under Order 21 Rule 58 (1) & 2 read with section 151 CPC for releasing his following properties (hereinafter referred to as the properties) from attachment:- “(a) Immovable property comprised in Khata Khatauni No. 194min/497, Khasra No. 2301/520 measuring 88 sq. mtrs situated in Mauja Basal, Patti Khas, Tehsil and District Solan (HP) as entered in the jamabandi for the year 1999- 2000. (b) Immovable property comprised in Khata Khatauni No. 194min/496, Khasra No. 2300/520 measuring 84 sq. mtrs situated in Mauja Basal, Patti Khas, Tehsil and District Solan (HP) mortgaged with the Baghat Cooperative Bank Solan for Rs.1,00,000/-. Against such property it was mentioned by the decree holder that this property be sold subject to the mortgage in which case the decree holder-non applicant bank prayed that it would be a second charge over the property.” 2. Indisputedly, the applicant is not the original judgment-debtor and is only the legal-representative of original judgment-debtor No.2 Rama Nand, who expired during the pendency of the execution and his legal-representatives were ordered to be brought on record vide order dated 3.1.2005 passed in OMP No. 266 of 2004. The applicant has sought removal of the attachment on the grounds that the properties mentioned above are his self acquired property and had not been inherited from his late father Rama Nand, and therefore, in terms of Section 50 of the Code of Civil Procedure, the same could not be attached. How the properties in question are his personal/ self acquired properties has been set out in detail in paragraphs-5 and 6 of the application, which reads thus:- “5. That it may be submitted that the aforesaid property attached pursuant to the orders passed by the Hon’ble Court is the personal property/self-acquired property of Shri Harinder Pal son of Late Shri Rama Nand judgment debtor No.2 (v), hence could not be attached in execution towards satisfaction of the decree. It is settled law that the legal heirs of the judgment debtors would be liable only to the extent they inherit the estate of deceased and not beyond that. It is submitted that the property mentioned at Sl. No.(a) above was purchased by the applicant vide Sale Deed No.221 dated 23.4.1996 from one Shri Sarnia for a sum of Rs.45,000/-. It is settled law that the legal heirs of the judgment debtors would be liable only to the extent they inherit the estate of deceased and not beyond that. It is submitted that the property mentioned at Sl. No.(a) above was purchased by the applicant vide Sale Deed No.221 dated 23.4.1996 from one Shri Sarnia for a sum of Rs.45,000/-. Pursuant to the sale made in favour of the judgment debtor-applicant Mutation No.1179 was attested in his favour on 15.6.1996 by the Assistant Collector Second Grade Solan. Copy of which is annexed as Annexure R-1. 6. That similarly in respect of property mentioned at Sr.No.(b) above, the said property was purchased by Shri Harinder Pal son of Late Shri Rama Nand judgment debtor No.2(v) on the basis of Relinquishment Deed as per Rapat No.608 dated 14.3.2003. On the basis of the aforesaid transaction Mutation No.2151 was attested in favour of the judgment debtor-applicant on 15.3.2003, copy of which is annexed herewith and marked as Annexure R-2.” 3. The decree holder filed his reply to this application, wherein it has not been denied that the aforesaid properties are the self acquired properties of the applicant, but it is stated that these properties can still be attached and sold in realization of the amount of decree and there is no illegality by putting these properties to sale. 4. Section 50 of Code of Civil Procedure reads thus:- “S. 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.” 5. Now in case sub-section (2) of Section 50 of the Code of Civil Procedure is seen, it leaves no manner of doubt that legal representatives of judgment-debtor are liable for the debts of the deceased only to the extent of estate acquired by these legal-representatives. Now in case sub-section (2) of Section 50 of the Code of Civil Procedure is seen, it leaves no manner of doubt that legal representatives of judgment-debtor are liable for the debts of the deceased only to the extent of estate acquired by these legal-representatives. The liability of such legal representatives in execution proceedings is therefore confined to the properties of the deceased which has actually come into their hands. Once the decree holder does not dispute the “properties” to be the self acquired properties of the applicant and further does not dispute that the applicant is not the original judgment debtor and is only one of the legal representatives of the original judgment debtor, then the properties of applicant No. 2 cannot be attached and put to sale. 6. From the records, it appears that though the decree holder has sought the attachment of the properties of the judgment debtor by filing OMP No. 520 of 2011, however, no orders have been passed in this application. But, then this court need not wait for the attachment orders because once it is proved on record that he is not the original judgment debtor and has come on record as one of the legal representatives of the original judgment-debtor No.2 and once it is proved on record that properties in his hand are self acquired/ individual property, therefore, these cannot be attached and put to sale. 7. Accordingly, application, being OMP No. 331 of 2014, is allowed in the aforesaid terms and consequently OMP No. 520 of 2011 seeking attachment of the properties of the judgment debtor No. 2 is dismissed.