VARKEY VARKEY Vs. AUGUSTHY VARKEY
HIGH COURT OF KERALA
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(1.)The decree - holder is the appellant. a decree on the following terms was passed on 10th or March 1955:
(Vernacular matter omitted)
Since then the first plaintiff died. When the second plaintiff sought to execute the decree, the objection was taken that he was only an agent of the first plaintiff and that on the death of the first plaintiff, the agency had terminated and therefore the second plaintiff was not en'titled to execute tile decree. Reliance for this contention was placed on the following statement in the decree giv'ing the summary of the plaint.
(Vernacular matter omitted)
The courts below have accepted the contention raised by the judgment - debtor and have dismissed The execution application.
(2.)It appears to me that the question tor decision depends upon the construction of certain sections of me Code of Civil Procedure and they are S.2(3), 2(11) and 47(3). These are extracted below:
"2 (3). 'Decree - holder' means any person in whose favour a decree has been passed or an order capable or execution has been made".
"2 (11). legal representative' means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character, the person on whom the estate devolves on the death of the party so suing or sued.
"47 (3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section be determined by the Court.
Explanation.-- For the purposes of this section, a plaintiff whose suit has been dismissed, a detendant against whom a suit has been dismissed and a purchaser at a sale in execution of the decree are parties to the suit".
(3.)From the decretal portion extracted above, it is clear, and there can be no doubt that the decree - holder in this case is the second plaintiff and the second plaintiff alone. The questions that can be determined in execution are those specified in S.47, and, if at all, the question that was mooted in the courts below can fall only under sub-section (3) of S.47. Such a question, it seems to me, can arise only on the death of the decree - holder, who, as I said, on a prima facie reading of the decree is me second plaintiff. If the second plaintiff is the decree holder, as long as he is alive, the further question as to who is the representative of the first plaintiff cannot arise in execution.
But counsel for the respondent strenuously contended before me that on, a proper construction of the decree, it is evident that the decree - holder is the first plaintiff and that the first plaintiff having died, the court can and must determine the further question as to who is the representative of the first plaintiff. This argument is entitled to weight if the assumption made that the decree - holder is the first plaintiff is correct. I am unable to accept this contention in view of the specific provision made in the Decree. No doubt, it is seen from the statement which i have extracted above, that the decree happened to be passed in favour of the second plaintiff on the basis of the consent given or the request made by the first plaintiff that a decree may be passed in the name of the second plaintiff tor and on behalf of the first plaintiff. Even so, from the definition of 'decree - holder' it is clear that the decree - holder can only be the person in whose favour a decree has been passed. The grounds on which the decree had been so passed, the reason for the same and the motives writer) prompted the first plaintiff to so request are matters, I consider, entirely foreign to the scope or the enquiry falling under S.47 of the code of Civil Procedure. S.2(11) also throws some light on this aspect. The sub-section provides for a case where a party had sued in a representative character, and enacts that when such a person dies, his legal representatives are those on whom the estate devolves. So, it seems to me to be clear that it is only in cases where a party suing in a representative character dies that an enquiry on whom the estate devolves can arise.
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