This article is written by Shivangi Ghosh, currently pursuing BA LLB from Amity Law School, Delhi. This article elaborates on the enforceability of the decrees against the legal representative in the case of deceased judgment-holder provided under the Code of Civil Procedure,1908.
Table of Contents
Introduction
It is a common phenomenon in which the judgment holder dies which can prove to be problematic for the decree-holder for enabling him to get his relief. It can be during the pendency of the suit between the judgment debtor and the decree-holder or after the judgment holder is dead the relief has to be extracted from the legal representative of the judgment debtor by executing the decree against the legal representative. Law helps to deliver justice by explicitly mentioning under the Civil Procedure Code of 1908 that the Legal representatives of the deceased will become liable on his/her behalf to execute the decree.
Scope of the sections
Execution is the enforcement of the decree which enables the decree-holder to realize the end objective in its favour in the executory judicial proceedings and it lies against the Judgment Debtor who becomes liable but due to the fact that the judgment holder is deceased; he cannot pay in any form. The sections provided under the Civil Procedure Code of 1908 makes sure that the decree-holder gets the fruit that is available to him because of the decree instead of being helpless in such situations.
What happens if the judgment holder dies before executing the decree
In the case where the judgment holder cannot execute the decree himself, the legal representative as defined under Section 50 of the Civil Procedure Code of 1908 will become liable to act as his legal representative and do what is instructed by the executing courts which could be either:
- From recovery of money from the deceased’s estate,
- From attachment of deceased judgment holder’s property or,
- From sale of deceased judgment holder’s property.
- It is pertinent to note that one of the Cardinal Principles of law i.e. “Audi Alteram Partem” to hear both sides of the party fails to apply in the case where the judgment holder is deceased. But the Court is clear on the fact that decree can be executed and the proceedings will not abate. The court cannot be rendered useless in such situations therefore the legal representative of the judgment holder is to be brought before the court to deliver justice and fair relief to the decree-holder.
In the case of Mubarak v. Sushil, AIR 1957 Raj 154. The court clarified that the expression “May apply” is to be considered as “Shall apply” in the section. It is to deliver and execute the decree and it will be rendered useless if no legal representative is brought on record to give relief to the deceased decree-holder.
Section 52 of the Civil Procedure Code of 1908 deals with the enforcement of the decree against the legal representative when the Judgment holder is dead. It enables the Decree holder to appropriate the property of the deceased in his favour and against the Judgment holder. Judgment Holder in this scenario is dead and it has been devolved to the legal representative duly authorized by him. It is also aided by the provision of Legal Representatives which aims to define the extent of liability that is upon the legal representative.
The scope in Section 52 is similar to section to an extent. The only difference sought out is that the party and the legal representative are executed during the suit under section 50 and section 52 talks about enforcing the decree against the legal representative after the judgment debtor is dead. So, therefore it is compulsory to bring the legal representative of the Judgment debtor upon the death and during the continuation of the suit.
The extent of liability on the legal representative
The extent of the liability is limited to the property that has been provided by the judgment holder to the legal representative and which has not been duly disposed of.
In the case of Custodian Of Branches Of Banco vs Nalini Bai Nautique 1989 AIR 1589, the court held that the scope of the legal representative shall not be limited to the definition of legal heirs, but also aim to include the executors, administrators, reversioners, etc. The person who becomes authorized by the deceased to act in the disposition of the estate can be in line under the expression of Legal representatives. Even the wrong legal representative who acts fairly and appropriates the deceased’s property without fraud or collusion will say to be the legal representative after the bona fide enquiry by the court.
Defining legal representative
Section 2(11) of the Civil Procedure Code of 1908 deals with the definition of Legal Representative which says that the Legal representative is any person who has been given the authority to act in charge of the person who is deceased and also has to act as the representative in the matters of estate.
And Section 50 of the Civil Procedure Code of 1908 defines the representative which can be enforceable against for the execution of the decree in a suit in the case of the deceased judgment holder. In other words, the Legal Representative acts in the position so authorized by the deceased person who can no longer deal with the estate, and the party sued or suing. Legal representatives may include executors, administrators, reversioners, residuary legatees, etc.
A stranger who has the property owned by the deceased can also be liable to act as the legal representative of the deceased and be proceeded against in the Courts for such matters.
Doctrine of representation
In cases like Dayaram v. Shyam Sundari and Mohd. Sulaiman v. Mohd. Ismail ,the court held that the decree in the event where the judgment holder is no more and the wrong legal representatives or not all legal representatives are brought on record then after the bona fide enquiry and finding out that there had been no fraud or collusion. The decree is binding on the wrong representative as well as the legal representatives who were not present before the court i.e. the Co Nominee. is the only representative present for devolving and brought on record. It is pertinent to note that the essential elements of this doctrine of representation:
- There should be a bonafide Enquiry of the person who is brought on record to represent the matter as the legal representative of the deceased.
- Absence of fraud or collusion for the appropriation of the property by the Legal representative.
- It becomes binding on the person even though he/she was not like an heir of the deceased.
- It is binding on wrong representatives as well as the legal representative who should be brought on record but has not been available for the execution of the decree.
- The involved property should be representing the estate of the deceased. (Personal property of the legal representative cannot be attached)
Grant of the execution of the decree of permanent injunction u/s 50 of CPC against the legal heirs of the judgment debtor
The grant of Execution of the decree of a permanent injunction is maintainable against the legal heirs of the deceased as mentioned under Section 50 is also established by Supreme Court in the recent case of Prabhakara Adiga v. Gowri 2017 SCC Online SC 153.
The Court details out the simple factual matrix that Section 50 does not talk about any special kind of decree. It is apparent that before the performance of the decree, the judgment debtor dies and it has been passed on to the legal representative. In a case that statutorily grants the right to the third party to be the representative also equally can be executed against the legal heirs.
Landmark judicial pronouncement
- In the case of Satyawati Vs. Rajinder Singh And Anr the Supreme Court held that the Decree holders should get the relief expeditiously in the event of suit proceedings as the Judgment holders make it impossible for the decree holders to get their relief even after the settlement decided by the court. The High Court and Executing court perused through the report again making it impossible to get the relief the appellant party was supposed to. Hence, the appeal was allowed and the executing court was directed to perform the needful.
- The Court in the case of B.S. Ashok S/o Late B. Subbarama Setty vs. The Investment Trust of India Ltd. aimed to express the scope of the sections about the deceased. The limitation was mentioned which is to the extent of the property that has been given to the plaintiff to dispose of and not more than that for the execution of the decree.
- In another case of Debi v. Raj Krishna Mondal, 32 Cal WN 418 (H), the term “ Fully satisfied” was added by way of amendment to the old term of “Fully executed” as in the case after attaching the property after the judgment debtor died. His heirs could not be moved for the proceedings in court for the adequate relief that the decree-holder should have received.
- The decree of payment for the execution shall be by mode of attaching and selling of property of the deceased judgment holder. Another such case on the same matter was that the personal property of the legal representative was attached to pay off the creditor of the deceased judgment debtor. But the court held that any such relief that is to be granted by the Legal representative shall by way of attaching the estate of the deceased as it is to be proven by the Legal representative that the creditor is owed no money from his behalf, if personal property is attached it can be proved to be harmful to the legal heirs or representatives.
- The Supreme Court in the landmark judgment of V. Uthirapathi vs. Ashrab Ali, it was held in this case that after the execution petition is filed in the court and the decree-holder dies and his or her legal representatives are not brought on record for such a case so filed then it becomes a pending case in the eyes of law and there will be no case of abatement. It just stays pending till the time any heir under such titles arises again to claim for relief so desired previously.
Conclusion
There is a distinction between the two sections of the Civil Procedure Code where Section 50 talks about during the pendency of the suit, the Debtor dies and then the debtor’s legal representative ensures that the relief is enabled to the Creditor. Whereas under Section 52, the estate has already been devolved to the legal representative and the suit is started for the execution of the decree so entitled by the Creditor.
The Burden of proof is different in both these cases, in the former case the burden to prove that the legal heirs are liable to pay on behalf of the deceased, and in the latter case, it is on the Legal representative to prove that there had been no estate that should be given to the creditor and has no devolvement by the deceased in respect to such a transaction. The decree-holder has to ascertain the fact that the legal representative has obtained the real estate of the deceased adequately to pay for his relief and then only can he proceed against the person. The person who last handled the estate of the deceased can be proceeded against to enforce any such decree and he shall be liable to act as the legal representative of the deceased in the case.
References
- https://www.legalbites.in/important-definitions-cpc/
- https://indiankanoon.org/doc/1528864/
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