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Chathakelan Alias Thundu Alias Edathara Valia Nair Vs. Govinda Karumiar - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported in(1894)4MLJ59
AppellantChathakelan Alias Thundu Alias Edathara Valia Nair
RespondentGovinda Karumiar
Cases ReferredDunput Sing Bahadoor v. Ranee Rajessuree
Excerpt:
- 1. though the judge says there is authority for holding that the words 'legal representative' in section 234 of the code of civil procedure include any person who has taken possession of the property of the deceased judgment-debtor, he has not cited any such authority. it was held in the case reported in 15 w. r 476 dunput sing bahadoor v. ranee rajessuree, that property in the possession of others than the legal representative might be taken in execution of a decree ; but it was so held with reference to the language of section 210 of the code of 1859, which allowed of execution being taken either against the legal represen-stative or the estate of the deceased judgment-debtor. but in section 234 of the present code the words 'against the estate of the deceased debtor' are not to be.....
Judgment:

1. Though the judge says there is authority for holding that the words 'legal representative' in Section 234 of the Code of Civil Procedure include any person who has taken possession of the property of the deceased judgment-debtor, he has not cited any such authority. It was held in the case reported in 15 W. R 476 Dunput Sing Bahadoor v. Ranee Rajessuree, that property in the possession of others than the legal representative might be taken in execution of a decree ; but it was so held with reference to the language of Section 210 of the Code of 1859, which allowed of execution being taken either against the legal represen-stative or the estate of the deceased judgment-debtor. But in Section 234 of the present Code the words 'against the estate of the deceased debtor' are not to be found, and execution is allowed only against the legal representative and 'to the extent of the property of the deceased which has come to his hands and has not been duly disposed of.'

2. We do not think that the words, 'legal representative' can be taken to include any person who does not in law represent the estate of the deceased. The wording of Section 234 seems to point to the intention that a stranger in possession of property who was not a party to the decree ought not to be proceeded against in execution or otherwise than by a regular suit.

3. We must set aside the orders of the courts below with costs throughout.


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