IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 8TH JANUARY 2009 / 18TH POUSHA 1930 CRP.No. 644 of 2006() --------------------- AGAINST THE ORDER DATED 02/03/2006 IN IN EP 602/2005 IN OS.938/1997 of I ADDL.M.C.,THIRUVANANTHAPURAM .................... REVN. PETITIONER(S): REVISION PETITIONER/DECREE HOLDER/PLAINTIFF ---------------------------------------------------------------- CHANDRA BABU, ULLAS, MELATHUMELE, VATTIYOORKAVU, THIRUVANANTHAPURAM. BY ADV. SRI.L.MOHANAN SMT.LIGEY ANTONY RESPONDENTS: 2ND JUDGMENT DEBTOR/2ND DEFENDANT ------------------------------------------------ SHEEJA, D/O.SUSEELA, RESIDING AT PALLINADA VEEDU, MANALEYAM, KODUNGANOOR, THIRUVANANTHAPURAM, WORKING AS FTM, ST.FILOMINA'S GHS, POONTHURA, THIRUVANANTHAPURAM. ADV. SRI.PIRAPPANCODE V.S.SUDHIR FOR R1 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 08/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: HARUN-UL-RASHID, J. ---------------------------------------- C.R.P.No.644 of 2006 ---------------------------------------- Dated this the 8th day of January , 2009 ORDER The decree holder in O.S. No. 938/1997 on the file of the Additional Munsiff's Court, Thiruvananthapuram is the revision petitioner. This revision petition is filed against the dismissal of the execution petition. The execution court held that where the decree is passed against a party as the legal representative of a deceased person and the decree for payment of money out of the property of the deceased, it may be executed by attachment and sale of such property as per Section 52 of the Code of Civil Procedure. The revision petitioner/decree holder has now sought for attachment of the salary of the respondent/2nd judgment debtor in execution of the decree for realisation of money. The present Job obtained by respondent/ 2nd judgment debtor is not a property inherited by her from her late father. The execution court concluded that the respondent's/judgment debtors' liability is subject to Section 52 of the C.P.C and the revision petitioner/decree holder is not entitled to get an order of attachment of salary as prayed for. 2. O.S. 938/1997 was filed by the revision petitioner/decree holder against the defendants 1 and 2 who are the judgment debtors in the said suit. The 1st defendant in the said suit had passed away and the 2nd defendant is the sole respondent herein. The averment that the C.R.P No. 644 of 2006 -2- husband of the 1st defendant and the father of the respondent/2nd defendant one Mr. P.George obtained a loan of Rs. 16,000/- from the revision petitioner on 12.1.1995 and executed a promissory note on the same day itself and promised to repay the amount with interest. It was further stated in the plaint that the defendants inherited all the properties belonging to the deceased Mr. P.George. 3. In the written statement filed by the defendants it was interalia contended that late Mr. P.George had not left any property to be inherited by the defendants. The trial court on 21.8.1999 decreed the suit allowing the revision petitioner to recover a sum of Rs. 20,545 with interest at the rate of 12% per annum on the principal amount of Rs. 16,000/- from the date of suit till realisation from the assets of the defendants both movable and immovable with cost. . There was no finding in the suit that the defendants inherited any property movable or immovable which had been left by late Mr.P.George. Moreover, the decree passed against the defendants was not in their own capacity but as the legal heirs of deceased Mr. P. George. The suit was instituted on the premise that late Mr.P.George failed to pay the amount . Subsequently he died leaving behind both his movable and immovable property. Assuming that Mr. P.George died not leaving the properties to be inherited by the defendants, there is no proof or no positive finding by the trial court in that regard. But the trial court passed a decree, fastening the liability on C.R.P No. 644 of 2006 -3- the defendants jointly and severally not in their own capacity but as the legal representatives of deceased Mr.P. George. Therefore the trial court is not justified in dismissing the execution petition. The decree is not subject to any rider under Section 52 of the C.P.C. Therefore the order under challenge is set aside and the execution court is directed to restore the E.P back to file and to proceed accordingly. This C.R.P is allowed. There will be no order as to costs. (HARUN-UL-RASHID, JUDGE) es. The following sentence “ But the trial court passed a decree fastening the liability on the defendants jointly and severally not in their own capacity but as the legal representatives of deceased Mr. P George” occurring as the 8th sentence in paragraph 3(pages 2 & 3) of the order dated 08.01.2009 in C.R.P 644/2006 is corrected as” But the trial court passed a decree fastening liability on the defendants jointly and severally in their own capacity but not as the legal representatives of deceased Mr.P.George” as per order dated 25/03/2009 in R.P. 324/2009 sd/- Registrar (Judicial) C.R.P No. 644 of 2006 -4- HARUN-UL-RASHID, J. --------------------------- C.R.P. No. 644 of 2006 ---------------------------- ORDER 8th January , 2009