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2023 DIGILAW 1332 (AP)

Margadarsi Chit Fund Ltd v. Moturi Gnana Prakash

2023-09-23

K.MANMADHA RAO

body2023
JUDGMENT 1. Aggrieved by the orders dtd. 16/3/2015 passed in E.P.No. 77 of 2014 in Dis.No.53 of 2012 on the file of the Court of the Principal Junior Civil Judge, Visakhapatnam, (in short "the execution court" the present revision is filed. 2. The petitioner herein is the Decree Holder/ plaintiff; the respondents 1 to 4 herein are the Judgment Debtors/ defendants 1 to 4 before the court below. 3. Initially the petitioner filed a case for recovery of money against the respondents basing on the Chit transaction before the Deputy Registrar of Chit/ Arbitrator at Visakahpatnam in Dis. 53 of 2012 and the same was disposed of by way of Award dtd. 2/6/2014 for Rs.76,872.00. Basing on the Award, Execution Petition was filed under order 21, rule 48 of C.P.C seeking to order attachment of J.Drs 1, 2 and 4 to the extent of money available by issuing pro-order to their garnishee mentioned in the E.P and claima to send to the attached amount to court for realization of E.P amount and further interest till realization. On enquiry, the execution court dismissed the said E.P holding that the Judgment Debtor No.1 died on 13/7/2014 and the Decree Holder not taken steps to implead the legal representations of the 1st Judgment Debtor. The E.P filed to attach the salary of an individual. Fresh decree cannot be executed against the legal representatives of the deceased 1st Judgment Debtor. Therefore the execution court dismissed the E.P. Aggrieved by the same, the present revision came to be filed. 4. Heard Mr. P. Durga Prasad, learned Senior Counsel for the petitioner and Mr. Jithender Rao Veeramalla, learned counsel for the 4th respondent. 5. During hearing learned counsel for the petitioner would contend that the execution court ought to have seen that the Award in the instant case is a joint and several and that all the respondents are jointly and severally liable for pay the E.P amount. The liability of all the respondents including the 4th respondent i.e 4th Judgment Debtor is co-extensive and immediate as per the provisions of Sec. 126, 128, 134, 137, 138, 139 and 140 of the Indian Contract Act. The liability of all the respondents including the 4th respondent i.e 4th Judgment Debtor is co-extensive and immediate as per the provisions of Sec. 126, 128, 134, 137, 138, 139 and 140 of the Indian Contract Act. It is further contended that the execution court ought to have seen that the respondents 1 to 3 remained exparte in the main case, therefore the petitioner has taken steps for issuance of the summons as per the procedure enumerated in CPC vide giving paper publication. So also the petitioner has no knowledge about the death of the 1st respondent and 3rd respondent as at no point of time there was neither information nor any intimation to the petitioner. The execution court erred in dismissing the application on the ground that the E.P is not executable, which is quite contra to the provisions of order 22, rule 4(3) of CPC. Therefore, the findings given by the learned execution court are mere surmises and hence the revision is liable to be allowed. 6. Whereas, learned counsel for the 4th respondent mainly contended that the Award was passed on 2/6/2014 against the dead person/ 3rd Judgment Debtor, who died in the month of June-2012. The petitioner is aware of the fact that the 3rd Judgment Debtor died and managed the summons to the 3rd Judgment Debtor. The Award passed against the dead person, which is nonest in the eye of law. The 1st Judgment Debtor died on 13/7/2014 i.e subsequent to the passing of decree. The petitioner suppressed the same and filed the E.P. Further the petitioner had not taken steps to implead the legal representatives of the deceased 1st Judgment Debtor. This respondent is only a guarantor to the 1st Judgment Debtor. Therefore the Decree Holder cannot proceed against the Judgment Debtor without adding the legal representations of the 1st Judgment Debtor and hence the revision is liable to be dismissed. 7. Perused the record. 8. As per Sec. 50 of CPC when the 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. In the instant case on one hand 1st Judgment Debtor died, but the petitioner has not taken steps to implead the legal representatives of the deceased. In the instant case on one hand 1st Judgment Debtor died, but the petitioner has not taken steps to implead the legal representatives of the deceased. On the other hand, the petitioner filed E.P against dead person, who died subsequent to Award. So also, the 3rd Judgment Debtor died and managed the summons to the 3rd Judgment Debtor as contended by the 4th respondent. 9. It is further contended by the 4th respondent that the Award passed against the dead person, which is non-est in the eye of law. The execution court pointed out that it is the duty of the decree holder i.e petitioner herein to furnish information to the court about the death of the judgment debtors, but same was not brought to the notice of the court. The execution court clearly distinguished the provision between Sec. 50 and 52 of CPC. Sec. 50 speaks about execution of a decree whether judgment debtor dies before the decree is executed, whereas Sec. 52 speaks about the execution of the decree which has been passed against the legal representatives. A suit against the dead person is undoubtedly not maintainable. If a decree obtained against the dead person without impleading his legal representatives, the decree is a nullity and cannot be executed. 10. The provision under Order XXII, Rule 2 of C.P.C, which reproduced hereunder: "Procedure where one of several plaintiffs or defendants dies and right to sue survives:- Where there are more plaintiffs or defendants than one, and any of them dies, and where the right to sue survives to the surviving plaintiff or plaintiffs alone, or against the surviving defendant or defendants alone, the Court shall cause an entry to the effect to be made on the record, and the suit shall proceed at the instance of the surviving plaintiff or plaintiffs, or against the surviving defendant or defendants". 11. It is made clear above that if any one of the parties died, the entire suit does not abate. If the cause of action is surviving, then the suit can be proceeded against other defendants as per order of erstwhile High Court of Andhra Pradesh in C.R.P.No.50 of 2014, dtd. 7/2/2014. The copy of the order is placed on record by the learned counsel for the appellant across the bench. Therefore, there is liability on the part of the sureties to pay the amount. 7/2/2014. The copy of the order is placed on record by the learned counsel for the appellant across the bench. Therefore, there is liability on the part of the sureties to pay the amount. In the instant case also, the 4th respondent is also on record and shown as surety for the 1st respondent, who is liable to pay the same. So, the contention of the learned counsel for the 4th respondent cannot be accepted. 12. Under the above said circumstances, the execution court went wrong conclusion and dismissed the Execution Petition. Therefore there is impropriety or irregularity in the order of the execution court and warrants interference of this Court. In view of the same, the revision is liable to be allowed. 13. In the result, the C.R.P is allowed. There shall be no order as to costs. As a sequel, miscellaneous applications pending, if any, shall also stand closed.