1. This appeal arises out of execution application No. 37/69 filed by the appellant in the Court of Civil Judge, Junior Division at Anjar Kutch district. The appellant-decree holder has obtained the decree, which is sought to be executed, in civil suit No.95/61 of that Court, on 5th December.1962. That decree was for possession and recovery of arrears of rent. It appears that the suit property, about which the decree is passed, was mortgaged with the appellant decree holder by Dungarshi Jivandas, the father of the judgment -debtors. It was a mortgage with possession. The mortgagor, therefore, executed a rent note in favour of the decree holder. It was on the basis of this rent note that the above referred civil suit No. 95/71 was filed by the decree holder. That suit was filed against the present respondents in their capacity as the legal representatives of Dungarshi. It is an admitted fact that at the time when the said suit was instituted on 16-10-1961,Dunparshi had already died, and there fore, the present respondents were in Possession of the suit property as statutory tenants. The suit was resisted by of the present respondents including the respondent No. 1. However, it ended in a decree-dated 5-12-1962. According to this decree the respondents were asked to hand over the vacant possession of the suit shop on or before 10-1-1963 and also to pay up the amount of arrears of Rs. 1.160/- to the decree holder. The operative portion of this decree is as under:
'A decree be passed with costs in favour of the plaintiff. The defendants to hand over the vacant possession of the suit shop to the plaintiff on or before 10-1-1963 and the plaintiff to get Rupees 16.12 np. per month as compensation till he gets possession.
The defendants also to Day the amount of Rs.1,160/- to the plaintiffs. The defendants to bear their costs.'
2. After this decree was passed, the decree holder filed execution application No. 2/63 and obtained the actual possession of the suit premises on 10th January, 1963. Thereafter in the year 1965 the decree holder filed another execution application bearing No. 25/65 for realising the amount of Rs. 1,756.52. For realising this amount, he also attached the respondents' right of redemption of the suit property. This attachment was resisted by the respondents but ultimately the said execution application was withdrawn by the decree holder on 26-9-1968.
3. It was thereafter that the present execution application has been filed by the decree holder on 20th August, 1969, for realising the amount due under the decree, which is sought to be executed. For realising this amount, the decree holder has sought to attach the moveable properties of respondents Nos. 1 and 4. The Court initially issued warrant of attachment without issuing a prior notice to the judgment-debtors. But before this warrant of attachment could be executed, the respondent No. 1 filed objections on 1-9-1969 as found at Exhibit 7. On these objections the Court ordered that warrant should not be executed till the judgment-debtors filed their objections on or before 12-9-1969. These objections appear to have been filed by the judgment debtors on 22nd September, 1969. The executing Court thereafter disposed of these objections by rejecting them and ordered the execution to proceed further.
4. Against the above referred order of the executing Court the present respondent No. 1, Bhatia Hemraj Dungershi, preferred an appeal before the District Court, Kutch at Bhuj where the said appeal was registered as Civil Regular Appeal No. 4/70. The learned District Judge, who has disposed of this appeal, found that the decree was passed against the legal representatives of deceased Dungershi and, therefore, the matter was governed by the provisions of Section 52 of the Civil Procedure Code. The learned District judge further held that since the matter is governed by Section 52 of Civil P. C. an inquiry contemplated by sub-section (2) of that section was necessary. He, therefore, remanded the matter back to the executing Court by directing that Court to investigate into the matter with a view to consider what properties of the deceased have gone to the hands of original judgment-debtors Nos. 1 and 4. He further observed that if the decree holder showed that some properties of the deceased have gone to the hands of the original judgment debtors Nos. 1 and 4, then these judgment-debtors would be liable for the decretal amount to the extent to which they have inherited the property of their father. It is against this order of the learned District judge that the decree holder has come in appeal before this Court.
5. Shri K. N. Mankad, who appears on behalf of the appellant, raised two contentions in this appeal as under:
(1) The learned District Judge was wrong in holding that the matter is government by Section 52 of the C. P. C., because, the decree, which is sought to be executed nowhere expressly or impliedly states that it is a decree for payment of money 'out of the property of the deceased' Dungershi.
(2) The contention of the judgment debtors that the matter is governed by Section 52, Civil P. C. is barred by the principle of constructive res judicata, because, no such contention is raised by the judgment debtors in previous two execution applications, which are referred to above.
6. I find that the appellant can succeed on the first point raised by Shri Mankad and, therefore, I do not propose to consider the second point raised by him as regards constructive res judicata.
7. So far as the first point is concerned the question is whether the decree, which is sought to be executed, is governed by Section 52 of the Civil Procedure Code. This section of the Code is with regard to the enforcement of a decree against the legal representatives and is found to be in the following terms:
'52 (1). Where a decree 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 b y 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.'
The first part of the section obviously stipulates a decree which carries with it two distinct characteristics, namely, (1) it should have been passed against the party as the legal representative of a deceased person, and (2) it should be for the payment of money out of the property of the deceased. Unless both these characteristics are found in the decree, it is obvious that it is not the one which is covered by Section 52 of the Code. In other words, it is not enough that a decree is passed against the legal representative of a deceased person, because, the second requirement of the section is that it should be a decree for the payment of money 'out of the property o f the deceased.' This second condition is as important as the former one and, therefore, so long as both these conditions are not complied with, it cannot be said that Section 52 of the Code has any application the facts of the case. The learned District Judge appears to have directed himself on the scope of the first condition, namely, that the decree should have been passed against a party as the legal representative of a deceased person, and has proceeded to consider whether this means a decree originally passed against the deceased or the decree which is passed against the legal representatives themselves representing the estate of the deceased. He has, however, failed to consider the necessity of the existence of the second condition, namely, that the decree should itself direct that the amount decreed should be paid 'out of the property of the deceased debtor'. Since the second condition must always exist before applying the provisions of Section 52 of the Code, I am of the opinion that the learned District Judge, who has decided the appeal, was not correct in holding that this section applies to the facts of the present case.
8. Shri Y. S. Mankad, who appears on behalf of the respondents, contended that the fact that the cause title of the decree shows that the respondents were sued in their capacity as legal representatives of the deceased debtor, as also the fact that the decree in fact is passed against the respondents in their capacity as legal representatives of the deceased debtor, it would be sufficient to hold that the matter is governed by Section 52 of the Code. This contention is not acceptable for the simple reason that the decree should not only be passed against the legal representative of a deceased debtor, but should also direct the payment of the amount decreed 'out of the property of the deceased debtor.' I have already quoted the operative portion of the decree, which is sought to be executed. It nowhere states that the amount decreed should be paid 'out of the property of the deceased'. In fact, it is a personal decree passed against the respondents. Shri Mankad drew my attention to the pleadings filed in the suit in which this decree has been passed. I have perused these pleadings and I have found that the decree holder, who was plaintiff in the suit has prayed for a personal decree against the judgment debtors. In the written statement, which was filed by the contesting defendants in that suit, no plea has been raised to suggest that the plaintiff is not entitled to a personal decree against the judgment debtors. The eventual decree, which is passed by the Court, also does not suggest that the judgment debtors were not personally liable for the amount decreed. Under the circumstances, a mere fact that the judgment debtors were sued in their capacity as legal representatives of the deceased debtor, would not help the judgment-debtors in resisting this execution on the ground that the matter is governed by S. 52 of the C. P.C. The executing Court cannot go behind the decree and if that be so, the decree should be taken as it is. If it is so taken, there is no doubt that it is a personal decree against the judgment debtors themselves. If this is a, personal decree, then obviously the Matter is not governed by Section 52 of the Code,
9. In the Patna case of Sm. Rani Brijraj Kumari v. Manranjan Prasad Singh, AIR 1947 Pat 365 the facts were that a creditor of the deceased who instituted a suit on a hand note executed by the deceased, impleaded two widows of the deceased as his legal representatives. Although there were circumstances in that case to suggest that the creditor originally wanted to bind both the widows in their representative capacity, there were no words in the decree to indicate that the decree was against the senior widow as legal representative of the deceased or that the decree holder intended to have the decretal amount out of the property of the deceased in her hands. The Court held that the decree itself must bear sufficient materials to indicate that it was intended by the Court to be operative against the estate of the deceased debtor and, therefore, the decree did not conform to the provisions of Section 52 of the Code. This decision lays down what is obvious on the bare reading of sub-section (1) of Section 52 of the Code. I, therefore, hold that it is not a case which is governed by Section 52 of the Code and, therefore, the learned District Judge was not correct in remanding the matter back to the executing Court to make the inquiry contemplated by subsection (2) of that section.
10 and 11 x x X X X
12. The result, therefore, is that this appeal should be allowed. The same is allowed with costs in this Court as well as in the lower appellate Court. The order of remand passed by the lower appellate Court is set aside and the execution is ordered to proceed further according to law.
13. Appeal allowed.