IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 7TH OCTOBER 2009 / 15TH ASWINA 1931 WP(C).No. 20631 of 2009(O) -------------------------- AGAINST THE ORDER DATED 29/10/2008 IN EP 21/07 IN OS.130/2004 of MUN-MAGI COURT, PARAVOOR .................... PETITIONERS: JUDGMENT DEBTORS/DEFENDANTS: ------------------------------------------- 1. USHAKUMARI, VAZHAVILA VEEDU, ULIYANADU, CHIRAKKARA VILLAGE, KOLLAM. 2. SANDHYA(MINOR), REPRESENTED BY HER MOTHER USHAKUMARI, RESIDING AT VAZHAVILA VEEDU, ULIYANADU, CHIRAKKARA VILLAGE, KOLLAM. BY ADV. SRI.ALEXANDER GEORGE RESPONDENT: DECREE HOLDER/PLAINTIFF: --------------------------------------- THANKAPPAN, PALLIKKUDAM VILA VEEDU, ULIYANADU, CHIRAKKARA VILLAGE, KOLLAM. ADV. SRI.B.SURESH KUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX(WPC 20631/09) PETITIONERS' EXTS.: EXT.P1: TRUE COPY OF THE DECREE IN E.P.21/07 IN O.S.NO.130/04 ON THE FILE OF THE MUNSIFF'S COURT, PARAVOOR. EXT.P2: TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER IN E.P.21/07 IN O.S.NO.130/04 ON THE FILE OF THE MUNSIFF'S COURT, PARAVOOR. EXT.P3: TRUE COPY OF THE ORDER IN E.P.21/07 IN O.S.NO.130/04 ON THE FILE OF THE MUNSIFF'S COURT, PARAVOOR. EXT.P4: TRUE COPY OF THE NOTICE DATED 8.1.2009 ISSUED BY THE MUNSIFF'S COURT, PARAVOOR IN E.P.21/07 IN O.S.NO.130/04 TO ABKARI COURT, KOTTARAKKARA. RESPONDENT'S EXTS.: EXT.R1(a): TRUE COPY OF THE COMMUNICATION DATED 5.11.07 ISSUED BY THE STATION OFFICER, KUNDARA TO THE LEARNED MUNSIFF MAGISTRATE, PARAVUR. S.S. SATHEESACHANDRAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.20631 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 7th October, 2009 JUDGMENT The Writ Petition is filed seeking the following reliefs: 1. To call for the records leading to this case and peruse the same. 2. To issue a writ of mandamus or any other appropriate writ, direction or order, to set aside the order passed by the court below in Ext.P3 and Ext.P4. 3. To stay all further proceedings pursuant to Ext.P3 and Ext.P4 till the final disposal of the above Writ Petition. 2. Petitioners are the judgment debtors in E.P.No.21 of 2007 in O.S.No.130 of 2004 on the file of the Munsiff Magistrate Court, South Paravoor. In the above suit for money based on a pronote executed by the husband of the first judgment debtor and father of the second judgment debtor, after his death, an ex parte decree was passed. The execution of the decree was resisted by the judgment debtors contending that they have not inherited any assets of the executant of the pronote, the debtor. The execution court noticing that as legal representatives of the debtor, they have collected his pensionary benefits including gratuity and provident fund payable to him as an W.P.C.No.20631/09 - 2 - employee in Government service ordered for attachment of a portion of the salary of the first judgment debtor to satisfy the decree debt. Pensionary benefits are not attachable and, so much so, the execution court went wrong in ordering for proceeding with the execution against the judgment debtors is the challenge raised in the Writ Petition. Notice given, the respondent decree holder has entered appearance. I heard the counsel on both sides. 3. The decree was passed against the judgment debtors allowing the decree holder to realise the sum from them is highlighted by the learned counsel for the decree holder to contend that none of the objections canvassed to resist the execution of the decree is sustainable under law. The judgment debtors have even disputed their status as legal representatives of the deceased debtor, according to the learned counsel. After the death of her husband, the first judgment debtor got employment in Government service under the dying-in-harness scheme, and on that account also the order passed by the court below for realising the decree debt by way of attachment of the attachable portion of her salary does not call for any interference is the submission of the learned counsel. 4. Indisputably, the suit claim was raised against the judgment debtors as the legal representative of the debtor after his death W.P.C.No.20631/09 - 3 - based on a pronote executed by him. So, even if the decree is granted for realisation personally against the judgment debtors, the proved fact that it was in respect of a liability cast upon them as the legal representatives of the debtor cannot be lost sight of by the execution court in proceeding with the execution of the decree. At the most, a correction of the operative portion of the judgment and the decree, if it is not properly worded, may be required. That cannot be given too much significance where it is admitted the liability is cast on the judgment debtors as legal representatives of the debtor. That being so, their liability is only to the extent of the assets of the deceased which have devolved upon them and which had not been duly disposed of. Strangely, it is noticed the execution court has not considered the executability of the decree against the second judgment debtor, a minor, where it is evident the decree had been passed without appointing a guardian for the minor as per rules. A decree passed against a minor without a guardian being appointed, as mandated by the rules, necessarily require to be examined by the court when execution of that decree is applied for. However, in the present case, as the impugned order direct realisation of the decree debt only as against the first judgment debtor, the widow of the debtor, and not against the minor, second judgment debtor, the W.P.C.No.20631/09 - 4 - nonenquiry on the above question has not caused any miscarriage of justice. Pensionary benefits of the debtor had been collected by the judgment debtors and it is much in excess the decree amount covered by the suit. Needless to point out that pensionary benefits of the deceased debtor collected by the judgment debtors after his death formed part of the assets of the debtor which had come to their hands as legal representatives of the deceased person. So far as the debtor was concerned, his pensionary benefits could not have been attached under Section 60 of the C.P.C., but, in the case of his legal representatives who collect such benefits after his death, no protection from attachment can be claimed as the amounts so obtained by them can only be treated as the assets of the deceased. So much so, I find no impropriety or illegality with the order passed by the court below directing to attach the attachable portion of the salary from the first judgment debtor to satisfy the decree debt. There is no merit in the Writ Petition, and it is dismissed. srd S.S. SATHEESACHANDRAN, JUDGE