* THE HON’BLE SRI JUSTICE V.V.S.RAO + CIVIL REVISION PETITION No.3146 of 2008 % Dated 05.02.2010 # Thota Kodanda Raja Gopala Rao, and another. …Petitioners VERSUS $ Vardhineedi Bhimeswara Rao, and others. …Respondents ! Counsel for Petitioners: Sri K.Subrahmanyam ^ Counsel for Respondents : Sri Immaneni Rama Rao <GIST: >HEAD NOTE: ? Cases referred THE HON’BLE SRI JUSTICE V.V.S.RAO CIVIL REVISION PETITION No.3146 of 2008 Dated:05.02.2010 Between: Thota Kodanda Raja Gopala Rao, And another. …Petitioners and Vardhineedi Bhimeswara Rao, And others. …Respondents THE HON’BLE SRI JUSTICE V.V.S.RAO CIVIL REVISION PETITION No.3146 of 2008 ORDER: An interesting question of some significance in execution of Court decree arises for consideration in this Civil Revision Petition filed under Article 227 of the Constitution of India. The following brief background of the case helps for better appreciation of the point for consideration. Respondent No.1 filed a suit, being O.S.No.95 of 1997, on the file of the Court of the Additional Senior Civil Judge, Eluru. The said suit for specific performance of agreement of sale in respect of a Cinema Theatre and vacant land at Eluru was partly decreed on 28.09.2001. Defendants, namely, Thota Krishnaveni - mother of petitioners herein, Bhimana Satyanarayanamma, Boddu Veerayamma (respondent No.3 herein) and Vyasam Rama Devi were directed to return the sale consideration of Rs.51,116/- with interest at 12% per annum from the date of the suit till date of the decree and at the rate of 6% per annum from the date of decree till payment. Respondent No.1 filed E.P.No.16 of 2002 for execution of the decree for attachment and sale of the Cinema Theatre. Cinema Theatre was attached. E.P was dismissed on 03.04.2003 for non payment of batta and service of notice on the Judgment Debtor No.4 (mother of petitioners). The Decree Holder then filed E.A.No.1031 of 2006 under Order XXII Rule 4 of the Code of Civil Procedure, 1908 (CPC), to bring the petitioners as legal representatives of deceased Judgment Debtor No.4. By impugned order dated 28.03.2008, the same was allowed, aggrieved by which, the present Civil Revision Petition is filed. The learned Counsel for the petitioners contends that when the E.P was dismissed against Judgment Debtor No.4, E.P was not pending as against Judgment Debtor No.4. Therefore, the same having become final the petitioners cannot be brought on record as legal representatives of the deceased Judgment Debtor No.4. He nextly contends that E.P abated as against Judgment Debtor No.4 and therefore without there being an application to set aside the abatement or without there being application to condone the delay in filing such application the petitioners cannot be brought on record as legal representatives of the deceased Judgment Debtor No.4. This Court ordered notice to respondents. First respondent (Decree Holder) appears through the Counsel. As notices could not be served on respondent Nos.2 to 4/Judgment Debtor Nos.1 to 3, after taking permission, learned Counsel for the petitioners has taken out notice to them by substituted service by publishing the notice in ‘Andhra Jyothi’, Eluru Edition, dated 09.01.2010. In spite of service of notice, none appears and they are called absent, and set ex parte. Learned Counsel for the first respondent (Decree Holder) submits that as per Section 50 read with Order XXII Rule 4 of CPC, the E.P can be proceeded with against legal representatives of the deceased. In view of the rival contentions, the point that arises for consideration is whether the executing Court can proceed with the execution petition against the legal representatives of one of the judgment debtors when the decree is against all the Judgment Debtors. The undisputed facts are as follows. First respondent instituted the suit for specific performance of agreement of sale. Alleging that the defendants including mother of the petitioners executed agreement of sale on 30.07.1995 agreeing to sell Gajalakshmi Picture Palace for Rs.5,50,000/-, that vendee paid Rs.51,116/- and that the vendors agreed to register the sale deed on or before 31.12.1995 after receiving the balance sale consideration. The first defendant, namely Bhimana Satyanarayanamma, opposed the suit alleging that vendors were always ready and willing to perform their part of the contract and that it is vendee who failed to perform his part of the contract. After trial the Court of the Additional Senior Civil Judge, Eluru, recorded a finding that it is the purchaser who was not ready and willing to perform his part of the contract, and therefore, not entitled to specific enforcement of agreement of sale. Accordingly, the suit was decreed for payment and all the defendants were required to pay the sale consideration received from the purchaser. Though defendants were not directed to pay the amount jointly and severally, from the background facts it becomes clear that all the defendants were made to pay the amount jointly and severally because all of them had joint ownership of Gajalakshmi Picture Palace. This has some bearing on the merits of the case. The Decree Holder filed E.P in 2002. Notices were ordered. At that stage the mother of the petitioners – Judgment Debtor No.4, died on 17.03.2006. Indisputably, the same was not informed to the Counsel for the Decree Holder nor any material is placed before this Court that there was a compliance with Order XXII Rule 10A of CPC. Be that as it is, on 03.04.2003 E.P was dismissed for non-payment of batta for service of notice on Judgment Debtor No.4. Presumably, for the reason that the decree holder came to know about the death of the mother of the petitioners and filed E.A.No.1031 of 2006 under Order XXII Rule 4 of CPC to bring the petitioners as legal representatives of Judgment Debtor No.4, the Court below relied on Section 50 of CPC and allowed the application. Section 50 of CPC reads as under. 50. Legal representative:- (1) Where a judgment-debtor dies before the decree has been fully satisfied, the holder of the decree may apply to the Court which passed it 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. A plain reading of the same would show that it is always competent to the executing Court to execute the decree against legal representatives of the deceased either suo motu or on an application. The only condition is that the Judgment Debtor died before the decree has been fully satisfied. Therefore, it must be held that when the Judgment Debtor dies before the decree has been fully satisfied, the Court can always proceed against the legal representatives of the deceased. As per subsection (2) of Section 50 of CPC it shall be the duty of the legal representative to satisfy the decree either fully or to the effect of the property of the deceased, which has come to his hand. To secure such compliance Court can suo motu compel the legal representative to produce the accounts and pass such orders as are deemed fit. Admittedly, Court below has only impleaded the petitioners as legal representatives of the deceased Judgment Debtor No.4. Therefore, the Civil Revision Petition is misconceived and is without any merits. For the above reasons, the Civil Revision Petition is dismissed without any order as to costs. _______________ (V.V.S.RAO, J) 05.02.2010 Note: LR Copy to be marked. B/o. vs