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Sudhamani Dei Vs. Sadananda Mohanty and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily;Civil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 277 of 1978
Judge
Reported inAIR1979Ori130; 47(1979)CLT513
ActsCode of Civil Procedure (CPC) , 1908 - Sections 53; Hindu Succession Act
AppellantSudhamani Dei
RespondentSadananda Mohanty and anr.
Appellant AdvocateS.S. Das, Adv.
Respondent AdvocateS. Kr. Mohanty, Adv.
DispositionRevision allowed
Cases ReferredKeshav Nandan Sahay v. The Bank of Bihar). If
Excerpt:
.....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......43 of 1975. in view of the death of narayan his widow and daughter were brought on the record as legal representatives. an objection was filed in the executing court by the widow and her daughter contending that they were not liable for the decretal dues and as such should be expunged from the execution case. the executing court rejected the objection. the widow has carried this revision challenging the order of rejection of her objection. so far as the daughter is concerned, the order has become final against her in the absence of any challenge.3. there is no dispute that the widow and the daughter are sought to be proceeded against on the ground that they have obtained a share of the property of the original judgment-debtor and it is conceded from the side of the decree-holder that.....
Judgment:
ORDER

R.N. Misra, J.

1. This is an application by the widow of one of the judgment-debtors whose objection under Section 47 of the Code of Civil Procedure (hereinafter referred to as the 'Code') to the execution of the decree has been rejected. She has claimed that the property in her hands was not liable for execution and, therefore, should be exempted.

2. Opposite party No. 1 obtained a decree in Money Suit No. 4 of 1967 on 23-12-1968, against one Narayan Mohanty and his son Chandrakanta. The decree was put into execution in Execution Case No. 43 of 1975. In view of the death of Narayan his widow and daughter were brought on the record as legal representatives. An objection was filed in the executing court by the widow and her daughter contending that they were not liable for the decretal dues and as such should be expunged from the execution case. The executing court rejected the objection. The widow has carried this revision challenging the order of rejection of her objection. So far as the daughter is concerned, the order has become final against her in the absence of any challenge.

3. There is no dispute that the widow and the daughter are sought to be proceeded against on the ground that they have obtained a share of the property of the original judgment-debtor and it is conceded from the side of the decree-holder that their liability is limited to the extent of the inheritance, Mr. Das for the petitioner places reliance on the provision of Section 53 of the Code which provides :--

'For the purposes of Section 50 and Section 51, property in the hands of a son or other descendant which is liable under Hindu Law for the payment of the debt of a deceased ancestor, in respect of which a decree has been passed, shall be deemed to be property of the deceased which has come to the hands of the son or other descendant as his legal representative.'

According to the objector, she not being 'a son or other descendant' and she having succeeded to a portion of the property in her own right under the Hindu Succession Act of 1956, cannot be made liable for satisfaction of the decree in view of Section 53 of the Code. Section 50 of the Code on which Mr. Mohanty for the decree-holder relies provides :--

'(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.'

It is maintained by Mr. Mohanty that the widow is a legal representative of her husband and in view of clear provision in Sub-section (1) of Section 50 of the Code, the court is entitled to execute the decree against the legal representatives. It is fairly settled that Section 53 is an explanation to Sections 50 and 52 of the Code. While Sections 50 and 52 provide for remedies of a creditor against the properties of his deceased debtor in the hands of his legal representative, Section 53 explains the meaning of the term 'property of the deceased.' Section 2(11) of the Code defines the term 'legal representative.' Section 53 indicates a modified position, namely in case of a Hindu, the property of the judgment-debtor in the hands of a son or other descendant only would be liable as legal representative. In the case of Pannalal v. Mt. Naraini, AIR 1952 SC 170, it has been indicated (at p. 174):--

'It is now settled by judicial decisions that there is no difference as between son, grandson and great grandson so far as the obligation to pay the debts of the ancestor is concerned; but none of them has any personal liability in the matter irrespective of receiving any assets, ..... The position, therefore, is that the son is not personally liable for the debt of his father even if the debt was not incurred for an immoral purpose and the obligation is limited to the assets received by him in his share of the joint family property or to his interest in such property and it does not attach to his self-acquisitions .....'

Even if the widow be a legal representative, in terms of the definition under Section 2(11) of the Code and under Section 50, she could be substituted in place of the deceased husband as a legal representative, in view of the special provision in Section 53 of the Code ' she would not be liable. This section expressly confines the liability to the property in the hands of a son or other descendant. Where joint family property passes by survivorship from one member of a joint family to another, the property is that of the latter, but the section regards it as the property of the deceased in the circumstances mentioned therein and confines the liability in the hands of the son or other descendant. The legal position seems to be uniform that the widow is not a descendant and she gets her right in the husband's property as a statutory heir. (AIR 1966 Bom 169: Rangubai v. Laxman Lalji Patil, and AIR 1977 Pat 185: Keshav Nandan Sahay v. The Bank of Bihar). If the widow would not come within the ambit of the phrase 'other descendant,' she would not have liability under Section 53 of the Code. It is unnecessary to refer to many authorities cited at the Bar as most of them have no direct bearing on the point. On the analysis presented above, it should be held that the widow's share in the husband's property received by her under the provision of the Hindu Succession Act would not be available for execution of the decree against the deceased husband and her share, therefore, is immune.

4. The revision application must accordingly succeed. The objection filedby the judgment-debtor-petitioner asking for exemption of her property fromexecution must be acceded. I wouldaccordingly allow the civil revision,vacate the order of the executing courtand direct that the objection raised bythe widow be allowed. There would beno order for costs.


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