Decided on November 29,1935



Kania, J. - (1.) THE original plaintiff filed this suit against three defendants, claiming a sum of Rs. 12,000 and odd from them. On February 26, 1934, the present plaintiff obtained a decree for Rs. 16,027-8-0 against the three defendants for debt and interest, and costs of the suit. On July 10, 1934, the plaintiff obtained an order in execution of the decree and attached the whole property now in dispute in the execution proceedings. THE plaintiff alleges that the property belonged to defendant No.1 and his sons who. were members of a joint and undivided Hindu family. Objections were raised to other attachments on other properties, and on a summons taken out the plaintiff was directed to file suits to establish her right to attach those properties. One such suit was accordingly filed in Thana Court against Mathuradas, one of the sons of Jivandas. Pending these proceedings the firm of Jivandas Vallubhram and Co. , in which defendant No.1 herein was a partner, were adjudicated insolvents on December 12, 1934. THE plaintiff alleges that defendant No 1's name in that firm represented the share of the joint family consisting of defendant No.1 and his sons. On April 29, 1935, Jivandas, defendant No.1, died. After a decree in the Thana suit was passed on July 1, 1935, declaring that the property therein involved was joint family property, the plaintiff made the present application under Order XXI, Rule 22, Civil Procedure Code, and served it on the Official Assignee and the present respondents calling upon them to show cause why the decree should not be executed against them. THE Official Assignee docs not appear and contest.
(2.) THE attachment levied against the property in question on July 10, 1934, still subsists and the application for execution originally filed still remains to be disposed of. THE present application for execution of the decree against the representatives of the deceased could be made in the pending application and it is not necessary to make a fresh application for the purpose (See Purushottam v. Rajbai (1909) 11 Bom. L. R. 1358 and Shankar v. Hiralal (1931) 38 Bom. L. R. 858 ). THE terms of Order XXII, Rule 12, of the Civil Procedure Code, also show that on the death of a judgment-debtor a pending application for execution does not abate. To this extent, therefore, there can be no objection on the part of the respondents. On behalf of the plaintiff it is contended that the terms of Section 50 of the Civil Procedure Code, read along with Section 53, show that the opposing respondents are, for the purpose of this application, legal representatives, provided it is shown on evidence that there is property in their hands which is liable for payment of the decretal amount, as it is not disputed that the opposing respondents are the sons of Jivandas. It is urged on behalf of the plaintiff that the definition of " legal representative" as contained in Section 2, Sub-section (11), is not exhaustive and should be qualified by Section 53.On behalf of the respondents it is contended, on the other hand, that on the insolvency of Jivandas the Official Assignee became his legal representative and on the death of Jivandas, therefore, it is not necessary to bring the respondents on record. It is contended that just as during Jivandas's lifetime the plaintiff could have executed the decree against the joint family property, if any, in the hands of the present respondents, even after Jivandas's death ft the plaintiff would be entitled to do so without making the respondents parties as legal representatives. On behalf of the respondents strong reliance is placed in this connection on the decisions in Fakirchand Motichand v. Motichand Hurrukchand (1883) I. L. R. 7 Bom. 438 and Chunilal Harilal v. Bai Mani (1918) I. L. R. 42 Bom. 504 : S. C. 20 Bom. L. R. 660. It is, therefore, necessary to consider the following sections of the Civil Procedure Code.
(3.) SECTION 2 (11) : ' legal representative' is 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 : Section 50 : (i) Where a judgment-debter dies before the decree has been fully satisfied, the holder of the decree may apply to the Court which passed the decree to execute the same against the legal representative of the 'deceased. (2) Where the decree is executed against such legal representative, he shall be liable only to the extent of the property of the deceased which has come to his hands and has not been duly disposed of; and, for the purpose of ascertaining such liability, the Court executing the decree may, of its own motion or on the, application of the decree holder, compel such legal representative to produce such accounts as it thinks fit.;

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