1. This appeal by the 8th defendant is against the order of the lower appellate Court rejecting his objections to the executability of the decree. The execution Court had allowed his objections. The decree in the case which was sought to be executed was passed on 14-4-1117 against the first defendant alone. In the plaint a charge was also claimed on the plaint property, which was purchased by the first defendant from the plaintiff. The amount claimed, it was alleged, represented balance of purchase money. Defendants 2 to 5 were impleaded as subsequent encumbrances. The suit was decreed as prayed for on 1-8-1113. At the second defendant's instance, the decree was reopened and it was again decreed on 3-11-1114 on the same terms. Thereafter, the third defendant applied to have the decree reopened which was done on 3-12-1115 and the suit was once again decreed on 14-4-1117 as against the first defendant alone. It was further stated in the decree dated 14-4-1117 that the suit in so far as it prayed for a decree charged on the plaint properties was dismissed.
2. The first defendant died on 16-7-1114, i.e. between the dates of the first two decrees passed in the case. His legal representatives were brought on record as defendants 6 to 8 on 5-10-1116.
3. The decree-holder, in execution, attached certain properties in the hands of the appellant alleging that they are properties that belonged to the deceased first defendant. This was objected to by the appellant on the ground that there was no decree passed in the case which was executable either against him or the properties in his hands. This contention, as was mentioned earlier, was not accepted by the lower appellate Court, though is found favour with the execution Court.
4. Madhavan Nair, J., who heard this appeal has referred the case to a Bench by his order dated 23-3-1962, and this appeal has thus come up before us.
5. Section 52 of the Code of Civil Procedure reads:
'52. Enforcement of decree against legal representative -- 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'.
It is more or less well settled that the provisions of the section are imperative and not merely directory. , It has also been held that in order that execution may be taken against the legal representatives, there must be a decree passed in terms of Section 52 of the Code of Civil Procedure. In Raja Ram v. Raja Bakhsh Singh, AIR 1938 PC 7 the Judicial Committee had to consider a similar question. The decree that came up for construction there was passed against defendant 3 personally and against the estate of one Badri Singh in the hands of defendants 1 and 2. It further provided: 'The suit is dismissed as against the other defendants.' The decree-holder applied for execution also as against those defendants relating to whom the suit stood dismissed. It was observed by the Privy Council that the decree-holder should have appealed against the decree and should have prayed for one being passed also against the defendants as against whom the suit was dismissed.
'Such a decree passed in accordance with Section 52, Civil P. C., would have attracted the operation of Section 53, and the respondents' interests in the joint property would have been liable to attachment under the decree. ...'
But in the absence of such a decree it was held that no execution can be had against the defendants against whom the suit was dismissed.
6. In Syed Sabir Hussain v. Farzand Hasan, AIR 1938 PC 80 the Judicial Committee again observed:
'In their Lordships' view, the proper form of decree is against each of the heirs of Sibti Hasan for that proportion of the appellants' joint claim which corresponds to the share of each heir in the estate of Sibti Hasan.' Again, in Madhavan Nair v. Choorapra Unnitha, AIR 1934 Mad 562(2) it was held:
'A decree must be against a person, and not merely against something which is not a person as e. g. the estate of a 'deceased person'. The phrase 'out of the assets of the deceased,' is merely, a restrictive qualification. And though payment has to, be made only put of the assetsof the deceased, the decree is nonetheless a decree against the legal representative.'
7. There is no decree against the legal representative of the first defendant in this case. There is not even a decree passed in the case against the assets of the first defendant. The first defendant had died before the second and third decrees were passed in the case. In the circumstances, we have to uphold the contention of the appellant that the decree as it is passed is not executable against him.
8. We would not, however, like to leave this case without observing that it appears to us that the proper remedy of the decree-holder is to| apply for an amendment of the decree. In Jayant Rao Narayan Deshmukh v. Narsing Sakharam Deshmukh, AIR 1923 Bom 414 the Bombay High Court allowed a similar amendment. And in Brijraj Kumari Rani v. Manranjan Prasad Singh, AIR 1947 Pat 365 the Patna High Court said:
'In the interests of justice, however, I think it will be open to the decree-holder to approach the court that passed the decree to amend it, if the circumstances permit, after due notice to the judgment-debtor and to bring it into the line and form prescribed in Section 52 of the Code.'
We feel, that in the interests of justice, we should remark in this case as well, that it is open to the decree-holder to approach the court which passed the decree to amend it and bring it into form and in conformity with Section 52 of the Code of Civil Procedure.
9. We allow this appeal, but make no orderas to costs.