IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 25TH MARCH 2009 / 4TH CHAITHRA 1931 RP.No. 324 of 2009 --------------------------- ORDER DTD. 08/01/2009 IN CRP.NO.644/2006 OF THIS HONOURABLE COURT. .................... REVIEW PETITIONER/ RESPONDENT: ----------------------------------------------------- SHEEJA, D/O.SUSEELA, PALLINADA VEEDU, MANALEYAM, KODUNGANOOR, THIRUVANANTHAPURAM. BY ADV. MR.PIRAPPANCODE V.S.SUDHIR. RESPONDENT/ REVISION PETITIONER: -------------------------------------------------------- CHANDRA BABU, ULLAS, MELATHUMELE, VATTIYOORKAVU, THIRUVANANTHAPURAM. BY ADV. MR. L. MOHANAN. THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 25/03/2009,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. HARUN-UL-RASHID, J. ---------------------------------------- R.P.No. 324 of 2009 in C.R.P No. 644 of 2006 ---------------------------------------- Dated this the 25th day of March, 2009 ORDER This review petition is filed by the respondent in the C.R.P No. 644 of 2006. This Court by the impugned order dated 8.1.2009 allowed the said C.R.P and directed the execution court to restore the E.P back to file and to proceed accordingly. The parties hereinafter referred to respondent/plaintiff and review petitioner/defendants. 2. The learned counsel for the review petitioner submitted that there is a mistake in stating that the decree passed against the defendants was not in their own capacity but as the legal representatives of deceased Mr.P.George and therefore the impugned order requires review . It is true that the said George is the debtor. In fact the trial court passed a decree against the defendants (review petitioner) as the legal representatives of the debtor. The trial court opined that as per Section 52 of the Code of Civil Procedure, where a decree is passed against a party as the legal representative of a deceased person and the decree is for payment of money out of the property of the deceased, it may be executed by attachment and sale of any such property. The direction of this Court in the impugned order under challenge, does not mean that it restricts realisation of money from the assets of the deceased P.George . So this court directed the execution court to proceed with the E.P. There is a apparent mistake in the sentence “ But the trial court passed a -2- decree fastening liability on the defendants jointly and severally not in their own capacity but as the legal heirs of deceased Mr. P.George.” The same 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.” 3. Both sides contested the suit and both sides have no case that the defendants are liable to pay the amount in their individual capacity. Therefore the decree ought to have been passed in this case subject to the rider under Section 52 of the C.P.C. Unfortunately the decree does not contain any such rider Therefore the dismissal of the E.P is bad in law and that is the reason why this Court directed the execution Court to proceed with the E.P. In the circumstances it is made clear that the defendants in the suit are free to move the trial court for review of the decree and judgment if so advised. 4. The grounds raised by the review petitioner cannot stand. This review petition is dismissed without prejudice to the right of the review petitioner to move the trial court for review of the decree and judgment. The sentence in paragraph 3 of the order dated 8.1.2009 in C.R.P. No. 644 of 2006 is corrected as stated above. (HARUN-UL-RASHID, JUDGE) es. HARUN-UL-RASHID, J. --------------------------- R.P.No. 324 of 2009 in C.R.P No. 644 of 2006 ---------------------------- ORDER 25th March, 2009