* THE HON’BLE SRI JUSTICE B.PRAKASH RAO C.R.P.No.3853 of 2007 %25.3.2011 Between # M/s. Vijay & Company, A partnership firm duly regd under TheIndian Partnership Act having its office At 140, Prince Street, Govind Buildings, 3rd floor, Bombay Rep by its proprietor or partner At present Vutukuri Badari Narayana S/o Venkateswarlu 63 years R/o 39-A, 3rd floor, 140, Prince Street, Govind Buildings, 3rd floor, Bombay … petitioner $ .M/s. Yogeswara Rao & Company, Chirala, Prakasam dist and ors ...Respondents ! COUNSEL FOR PETITIONER: Sri K.S. Murthy ^ COUNSEL FOR RESPONDENTS: < Gist: > Head Note: ? CITATIONS: 1.AIR 1988 AP 60 2.AIR 1950 Mad 407 THE HON’BLE SRI JUSTICE B.PRAKASH RAO C.R.P.No.3853 of 2007 Heard Sri K.S.Murthy, learned counsel appearing for the petitioner and Sri R.V.Subba Rao on behalf of the respondent. The petitioner, who is the decree holder seeks to invoke the jurisdiction of this Court under Section 115 of the Code of Civil Procedure, inter alia, seeking to assail the correctness of the order in dismissing the petition laid by him as per orders in E.P.No.11/1999 in S.C.1197/1973, dated 11-6-2007, on the file of the Junior Civil Judge at Chirala. The facts, which are not in dispute, are that the present execution is laid mainly against respondents 6 and 7 for realization of the decreetal amount. The petitioner, which is a partnership firm, filed a suit against the 1st defendant, which is again a firm on the original side of High Court of Bombay in the year 1973. Admittedly, even by the date of filing of the suit, the partner of the defendant No.1 namely Gunturu Nagendrudu was not alive, the suit was filed against the legal representatives for recovery of certain amounts and ultimately the said suit was decreed on 2-11-1987. The objection raised on behalf of the respondent was to the effect that late Gunturu Nagndrudu executed a registered will Ex.P.1, dated 7-4-1969 and he died on 24-3-1971, and therefore, in pursuance of the Will, which comes into effect after his death, the legatees became entitled to the properties. Since, the said suit was filed later in the year 1973, the legatees were already vested with their right, title and interest and hence it does not constitute estate of the deceased and as such they cannot be proceeded against. The case of the petitioner was to the effect that when admittedly the property belonged to Gunturu Nagendrudu and the same being in possession and enjoyment of the said judgment debtors 6 and 7, as estate of the deceased, hence liable. Considering these two submissions and especially the provisions under Section 50, 52 and 53 of the Code of Civil Procedure and narrowing it down to the relevant provision as Section 53, the Court below held that since Gunturu Nagndrudu died much before filing of the suit itself, it cannot be treated as an estate of the deceased so that the property can be proceeded against since it has already vested in the Judgment Debtors 6 and 7. Hence, the revision. Having considered the submission and also on perusal of the material there being no dispute in regard to the aforesaid facts, the questions which arise for consideration is in regard to the provision under Section 53 of the Code of Civil Procedure, which reads as follows: 53. Liability of ancestral property:- For the purposes of Section 50 and Section 52, property in the hands of a son or other descendant which is liable under Hindu law for the payment of the debt of a deceased ancestor, in respect of which a decree has been passed, shall be deemed to be property of the deceased which has come to the hands of the son or other descendant as his legal representative. And whether the legatees under a Will can be proceeded against the properties of the deceased, who died long prior to the decree and if it constitutes as an estate liable for any debts. On a bare reading of Section 53 of the Code of Civil Procedure thereof, it amply elicits that it is only the property, which comes in the hands of son or other descendant (lineal descendents such as son, grand son, great grand son) as legal representatives and remains with them, such decree obtained can proceed against. Whereas in the present case, it is not the case of the petitioner that the suit was filed against the deceased and there is a decree as such. Either way there is no proceeding initiated by with any logical end thereby resulting into a decree. Nor it is the case as found that the judgment debtors succeeded to the properties as legal representative by survivorship. Whereas it has been the case and found that the acquisition is by way of a bequeath. Even falling back to the provision under Section 52, it is the estate of the deceased/JDR which should be in the possession of the Judgment debtors, who are being proceeded against, which they fail to apply such estate to discharge the debt, as held in Smt D.Krishna Sachi Vs.Smt Y.Vijay Lakshmamma[1], and Chekka Suryanarayana Vs. Yenumulla Rajya Lakshmi[2]. Therefore, it can in no circumstances said to be a liability arising out of such a decree or personally either at a time when he was alive or immediately after institution when he was alive. In those circumstances, the question of pious obligation does not run and that apart the judgment debtors 6 and 7 are admittedly claiming through a Will under Ex.P.1, which is dated 7-4-69 and since the Gunturu Nagendruu died on 24-3-1971 and as on the date of death they have assigned absolute rights, title and interest in them. Though, an attempt was made on behalf of the petitioner by referring to the provisions of Hindu Succession Act, however, having regard to the aforesaid specific provision, none of these provisions run contra thereto nor come to the assistance of the petitioner. In the circumstances, I do not find any merits in the above revision and the same is accordingly dismissed. No costs. __________________ (B.PRAKASH RAO,J) grk Date: 25-03-2011 [1] AIR 1988 AP 60 [2]