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Vyapuri Mudaliar Vs. Vallammi and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1982)1MLJ309
AppellantVyapuri Mudaliar
RespondentVallammi and ors.
Excerpt:
- - 4. it may well be that for a situation of this kind we cannot put our finger on any particular provision which has already been laid down in the code, in black and white. 5. having considered the matter carefully, i am satisfied that there is no error of jurisdiction on the part of the executing court in this case when it proceeded with the execution petition with two out of three legal representatives and made appropriate orders in terms of the relief claimed in the execution petition......petition, the decree-holder died leaving behind him surviving his wife and two daughters as his legal representatives. all the three legal representatives brought themselves on record in the execution proceedings and continued the execution petition. the amount due under the mortgage decree was rs. 7,399.9. during the pendency of the execution petition, one of the daughters of the deceased decree-holder who was brought on record as one of the legal representatives of the deceased decree-holder and who figured as the second petitioner in the execution petition, received a sum of rs. 1,000 from the judgment-debtor and filed a memo, into court that she was not pressing that execution petition. the executing court, after recording the payment and the part satisfaction of the mortgage.....
Judgment:
ORDER

V. Balasubrahmanyan, J.

1. One Sivashanmugham obtained a mortgage decree against one Vyapuri Muda-liar. In execution of the final decree in the suit, the decree-holder filed an execution petition to bring the hypotheca to sale. Pending the execution petition, the decree-holder died leaving behind him surviving his wife and two daughters as his legal representatives. All the three legal representatives brought themselves on record in the execution proceedings and continued the execution petition. The amount due under the mortgage decree was Rs. 7,399.9. During the pendency of the execution petition, one of the daughters of the deceased decree-holder who was brought on record as one of the legal representatives of the deceased decree-holder and who figured as the second petitioner in the execution petition, received a sum of Rs. 1,000 from the judgment-debtor and filed a memo, into Court that she was not pressing that execution petition. The executing Court, after recording the payment and the part satisfaction of the mortgage decree to that extent, posted the execution petition for further proceedings by the remaining two legal representatives of the deceased decree-holder. At this stage, an objection was raised by the judgment-debtor that when one of the legal representatives of decree-holder had declared that the execution petition was not being pressed, that brought about a situation in which the same execution, petition cannot be further continued by the remaining two legal representatives. The executing Court, however, did not accept this objection and proceeded to allow the execution petition. The Court held that when the second legal representative declared that she was not pressing the execution petition, she could have no further say in the execution. Rut, that would not prevent the remaining two legal representatives from proceeding further with the execution petition on hand and from enforcing the decree. The Court further observed that there was nothing wrong in the remaining legal representatives proceeding with the execution petition and pressing the sale of the hypotheca for the realisation of the balance of the decree amount still outstanding. It is this order which is being challenged as being without jurisdiction by the judgment-debtor in this revision petition.

2. I asked Mr. Yamunan, learned Counsel for the judgment-debtor, as to what particular procedure the Code of Civil Procedure, has prescribed for a situation which had arisen in this case. Learned Counsel was not able to put his finger on any express provision in Order 21 or in any other part of the Code. He, however, hesitantly referred to Rule 15 of Order 21, as a near enough provision front which we might stretch a point we want to-cover in the present case. Rule 15 refers, in terms to a decree which has been passed jointly in favour of more persons than one. In-terms, therefore, this rule cannot apply to the present proceeding, for, this is not a case where there has been a joint decree in favour of co-plaintiffs. On the contrary, there was only one plaintiff in whose favour a decree was passed and, what is more, who had actually, filed an execution petition for enforcing the decree Mr. Yamunan then suggested that when one of the legal representatives of the deceased decree-holder, after receiving some amount from the judgment-debtor bowed herself out and retired from the execution proceedings, then it would have been proper for the executing Court to have done one of two things, namely, either direct the remaining legal representatives to transpose the retiring legal representative as a respondent or file a fresh execution petition exclusively by themselves, leaving out of account the legal representative who had already got paid from the judgment-debtor. Learned Counsel submitted that even though the provisions or Order 21,. Rule 15, Civil Procedure Code, are not directly in point, either one of the courses of action-suggested by him would have regularised the further proceedings in this execution.

3. I do not think that the alternative procedures as suggested by Mr. Yamunan are called for in the present case. Under the Civil Procedure Code, there is a specific provision to enable a decree-holder to execute his decree against the legal representatives of a deceased, judgment-debtor. But, there is no express j provision either in Order 21 or elsewhere in : the Code which expressly provides for the filing, or for the continuation, of execution ! proceedings by the legal representatives of a deceased decree-holder. However, the decree-holder's legal representatives are entitled to file or to continue the execution proceedings against the judgment-debtor on the general principle that they, in law, represent the estate ' of the deceased decree-holder. What we term as the estate of a deceased person cannot be equated to a person. At the same time, an estate of a deceased person cannot be regarded as a mere abstraction. This is because, the definition of 'legal representative under the Code is such that it is the 'estate' of the deceased which would be the legal representative. It is trite law that all the heirs of a deceased individual need not be brought on record in order that his estate may properly be represented in further proceedings. It is enough that one or some of the legal representatives, who may reasonably be regarded as sufficiently representing the estate, are brought on record. In this sense, therefore, the fact that one out of the three legal representatives of the decree-holder in the present case had made peach with the judgment-debtor and had retired from the proceedings does not render the representative capacity of the remaining two legal representatives any. the less comprehensive so as to represent and bind the estate. Besides, I do not see what improvement it would make to the further proceedings in execution by merely transposing the legal representative in question from the array of the petitioners to the opposite side. Nor can the situation be improved by asking the remaining legal representatives to terminate the present execution proceedings and start a fresh course by filing another execution petition, apparently without making the other legal representative a party either on the one side or on the other side. Both the courses of action suggested by Mr. Yamunan did not improve matters either procedurally or from the point of view of any principle governing remedies by way of execution.

4. It may well be that for a situation of this kind we cannot put our finger on any particular provision which has already been laid down in the Code, in black and white. Even as it is, the execution chapter in the Code is far too elaborate and detailed for its provisions to be supplemented by still more proliferation of technicalities and procedures. It is, however, quite within contemplation that some day the rule-making authority might come to know of a case of the present kind and feel called upon to introduce a fresh rule to cover cases of this kind. And in the process, we might be presented with a set of provisions as formal and as technically ridden as the rest of the rules relating to execution of decrees. But that is no reason why this Court, sitting as a judicial tribunal, must today give its seal of approval to an artificial extension of procedural formalities, when there is no principle under which such an innovative-extension of procedure can be supported. As the Court below has rightly said, there is no reason why, if any one of the legal representatives walks out of the execution proceedings, the remaining legal representatives must either bring the legal representative back into the arena on the respondent's side, or end the proceedings then and there, only to re-appear with another execution petition in their hands. It would be quite artificial, and it would serve; no purpose whatsoever, to drive the execution petitioners to such courses of action.

5. Having considered the matter carefully, I am satisfied that there is no error of jurisdiction on the part of the executing Court in this case when it proceeded with the execution petition with two out of three legal representatives and made appropriate orders in terms of the relief claimed in the execution petition. This revision accordingly deserves to be dismissed and is hereby dismissed. In the peculiar circumstances of the case, however, there-will be no order as to costs.


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