D.S.R. Prasad vs M. Ramarao and Another

S.V. Maruthi, J.—This revision arises out of an order passed by the learned Subordinate Judge, Madanapalle in E.A. No. 286 of 1992 in E.P. No. 16 of 1991 in LA. No. 1079 of 1983 in O.S. No. 74 of 1976.

The second plaintiff is the petitioner herein. Petitioner is the son of the first plaintiff. The first plaintiff died during the pendency of the final decree proceedings. The plaintiffs filed the suit seeking dissolution of the partnership firm carried on by the plaintiffs and the defendants in the name of Sunanda Silk Industries and for a direction to the defendants to account for the profits and losses. The trial Court passed a preliminary decreeon 23-4-1980 holding that the firm is dissoved from 24-11-1976 and the first plaintiff Sri D. Gurumurthi has to render accounts from 20-8-1972 till 24-11-1976 and the first defendant shall account for the balance of sale consideration left over with him. Thereafter, plaintiffs filed LA. No. 433 of 1980 for passing a final decree, pursuant to which, the Court appointed a Commissioner to work out and settle the accounts in terms of the preliminary decree. The Commissioner filed a report holding that the plaintiffs have to pay Rs. 1,42,918-00 and Rs. 9,000/- towards the share of the defendants. Since the said application was not pressed, the same was dismissed. Later on, the defendants filed LA. No. 1079 of 1983 for passing a final decree in accordance with the report filed by the Commissioner. During the pendency of the petition one Sri Nagraj was appointed as Commissioner who examined the witnesses and marked documents. On the basis of the report submitted by the Commissioner, the learned Subordinate Judge passed a final decree holding that the total amount payable by the plaintiffs to the defendants is Rs. 1,79,704/-. The plaintiffs were also directed to pay interest at 12% per annum on the above total amount from the date of the suit i.e., 1-12-1976 till the date of realisation. Pursuant to the above order, a final decree was passed in the following terms:

"That the 2nd respondent/2nd plaintiff do pay petitioners/defendants a sum of Rs. 1,78,704/- with interest thereon at 12% p.a. from 1-12-76 (date of suit) to the date of realisation."

The 2nd plaintiff filed E.A. No. 286 of 1992 in E.P. 16 of 1991 in I.A. No. 1079 of 1983 contending that the final decree passed is contrary to the terms of the preliminary decree as the preliminary decree was passed against the 1st plaintiff whereas in the final decree the 2nd plaintiff was made liable to discharge the decree amount in his personal capacity. He also raised various other objections. The trial Court dismissed the E.A. on the ground that the petitioner filed an appeal against the preliminary decree in A.S. No. 1767 of 1991 on the file of the High Court and sought for stay of execution of the decree. While granting stay of execution of the decree, the High Court directed him to deposit the decretal amount against which he filed a Letters Patent Appeal in L.P.A. No. 282 of 1992. This Court while disposing of the Letters Patent Appeal directed the petitioner to deposit the amount of Rs. 1,79,000/- within six weeks from the date of the order and with the said direction the order in the stay petition was modified. However, the petitioner has not deposited the amount which according to the learned Subordinate Judge establishes that the petitioner wants to prolong the matter for some reason or the other and that in view of the orders of the High Court in the L.P.A. no indulgence can be shown to the petitioner. Holding as above, the Subordinate Judge dismissed the E.A., against which, the present revision is filed.

The main contention of the learned Counsel for the petitioner is that the final decree is contrary to the terms of the preliminary decree as the preliminary decree was passed against the first plaintiff wherein it was categorically stated that the first plaintiff shall render accounts for the profits and losses of the business firm Sunanda Silk Industries from 20th September, 1972 till 24th November, 1976 and that the first defendant shall account for the amount of balance sale consideration left over with him and sent to him by the Andhra Pradesh State Finance Corporation after deducting the amount due to it. Counsel contends that according to the terms of the preliminary decree, it is only the first plaintiff who shall be liable to pay the amount, whereas in the final decree, the second plaintiff was directed to pay the amount. Therefore, the final decree is contrary to the terms of the preliminary decree.

Counsel relying on the judgment of this Court in D. Appala Raju v. K. Ramayamma, 1983 (1) APLJ 273., contended that while passing the final decree, the second plaintiff was made liable to pay the amount personally. In other words, there was a personal decree against him. According to the preliminary decree, it is the first plaintiff i.e., the father of the second plaintiff who was made liable to pay the amount. Therefore, the second plaintiff cannot be presonally made liable to pay the amount and since the second plaintiff was only a Legal Representative of the deceased first plaintiff, the Court cannot pass a final decree against the person of the legal representative of the deceased first plaintiff. Counsel submits that at the most, a final decree can be passed against the estate of the deceased first plaintiff in the hands of the second plaintiff. Counsel also submits that the final decree was passed in violation of Section 52 of the CPC and therefore it is a nullity and consequently the final decree is inexecutable. Counsel submits that the Court below had not considered the issue in its proper perspective.

Counsel appearing for the respondent submitted that the final decree is not a nullity and that the executing Court cannot go behind the decree. In support of his contention, he relied on the following decisions:

(1) Vasudev Dhanjibhai Modi Vs. Rajabhai Abdul Rehman and Others, .;

(2) Arvind Berry Vs. A.P.S. Bindra, .;

(3) State Bank of Hyderabad Vs. Joint family of Mukundas Raja Bhagwandas and Sons and Others, .;

Counsel submits that the question of decree being a nullity or the decree not being executable arises only in case where there is inherent lack of jurisdiction to the decree. Counsel, therefore, contends that it is not open to the petitioner to raise this objection at the stage of execution.

Before referring to the arguments advanced by the Counsel on both sides, it is necessary to refer to the pleadings and findings arrived at by the Courts below.

The pleadings which were referred to in the order of the learned Subordinate Judge are as follows:

The Petitioner (2nd plaintiff) stated that:

"In the preliminary decree the 1st plaintiff alone was directed to render accounts and tf\\crejs no such direction against him and consequently no final decree can be passed against him. The final decree passed in LA. No. 1079 of 1983 is not in conformity with the preliminary decree passed on 23-4-1980 and consequently it is not valid and executable against him......"

It was further stated that:

".....The final decree passed in LA. No. 1079 of 1983, dt.27-4-1991 is void and it is not an executable decree. The decree holders are not entitled to execute the void decree. The decree holders are trying to bring the properties belonging to him also for sale and they are not entitled to do so. Even during the life time of the 1st plaintiff he was entitled for half share and the decree holders are not entitled to proceed against his half share in the E.P. schedule properties. There is no preliminary decree passed against him to render accounts to the decree holders and to pay any amount to them. In the absence of any finding in the preliminary decree the decree cannot be executed against him....."

In the counter filed by the decree holders, as referred to in the order, it is stated as follows:

"..... The petitioner is estopped from filing any sort of petitions or objections as he got himself recognised as sole legal heir of his father by way of will, on 3-9-1985 in the proceedings in LA. No. 1079/83 wherein it is also pleaded by him that the E.P. schedule properties are self acquired properties of 1st J. Dr. and he alone succeeded to all the properties of his father. Even otherwise the petitioner is liable to discharge the E.P. amount under pious obligation...."

In other words, from the pleadings it is clear that the 2nd plaintiff viz., petitioner herein got himself recognised as the sole legal heir of his father under a will in the proceedings in LA. No. 1079 of 1983 and he claimed that the E.P. schedule properties are the self-acquired properties of the first plaintiff and he alone succeeded to the properties of the deceased 1st plaintiff. The petitioner also stated that during the life time of his father he is entitled to half share and the decree holders are not entitled to proceed against his half share in the E.P. schedule properties. In other words, even according to the petitioner, he is entitled to only half share of the E.P. schedule properties and the other half share belonged to his father viz., the deceased first plaintiff.

Now, I may refer to the judgment of this Court in D. Appala Raju v. K. Ramayamma (1 supra). It is a case where the auction purchaser purchased the property of the Judgment Debtor in a Court auction and the sale in his favour was confirmed. There was also delivery of possession of the property, on 6-12-1971. Thereafter on 6-11-1973 a petition to set aside the sale was filed by the widow of the judgment debtor. The contention was that the decree holder ought to have filed the suit against the legal representatives of the deceased debtor for the recovery of the suit debt from out of the assets of late Jaggarao in the hands of his legal representatives, but the decree holder could not have claimed the relief for personal decree and also against their personal properties contrary to the provisions of Section 52 C.P.C. While upholding the contention, the learned Judge held that "If the legal representative of the deceased-debtor is not in the possession of the estate of the deceased then the Court cannot pass a final decree against the personal property of the legal representative of the deceased-debtor u/s 52 CPC.....In this case the Court which passed a decree has violated gravely the second limb of Section 52 CPC while passing the decree making the personal properties of the first respondent liable for the debt contracted by the decree debtor instead of passing a decree against the estate of the deceased-debtor in the hands of the first respondent. When the decree was passed against the personal properties of the first respondent in violation of the mandatory provisions of Section 52 CPC the decree is a nullity and is, therefore, inexecutable....."

From the above, it is clear that when a decree is passed against a person in the capacity as a legal representative of the deceased debtor, there cannot be any decree against him in his personal capacity and no decree can be passed against the personal properties of the legal representative. There can be a decree against the estate of the deceased which is in the hands of the legal representative of the deceased debtor. There cannot be any doubt about the proposition laid down by this Court. However, I have already referred to the pleadings, according to which, the petitioner admitted that he had half share in the E.P. schedule properties and the other half share belonged to the deceased first plaintiff. Therefore, there can be a final decree to the extent of the half share which belonged to the deceased first plaintiff which was in the hands of the petitioner.

There cannot be any doubt about the proposition that the executing Court cannot go behind the decree. I may refer to the observations made by the Supreme Court in V.D. Modi v. R.A. Rehman (2 supra):

"When a decree which is a nullity, for instance, where it is passed without bringing the legal representatives on the record of a person who was dead at the date of the decree, or...., is sought to be executed an objection in that behalf may be raised in a proceeding for execution. Again, when the decree is made by a Court which has no inherent jurisdiction to make it, objection as to its validity may be raised in an execution proceeding if the objection appears on the face of the record: where the objection as to the jurisdiction of the Court to pass the decree does not appear on the face of the record and requires examination of the questions raised and decided at the trial or which could have been but have not been raised, the executing Court will have no jurisdiction to entertain an objection as to the validity of the decree even on the ground of absence of jurisdiction."

However, the issue involved herein is not that whether the executing Court can go behind the decree, but the issue is whether the decree can be executed against the person/personal properties of the second plaintiff, namely, the petitioner. I have earlier referred to the final decree which says "that the 2nd plaintiff do pay defendants a sum of Rs. 1,78,704/- with interest thereon at 12% p.a. from 1-12-76 (date of suit) to the date of realisation". In other words, it is a decree against the 2nd plaintiff in his personal capacity. Since the preliminary decree did not provide for the realisation of the decree debt from the second plaintiff in his personal capacity, to this extent, the respondents are not entitled to proceed against the petitioner in his personal capacity, but should proceed only against the estate of the deceased first plaintiff in the hands of the second plaintiff-petitioner. However, in the counter filed by the respondents, it is categorically stated that the petitioner got himself recognised as the sole legal heir of his father by way of a will on 3-9-1985 in the proceedings in LA. No. 1079 of 1983 wherein it is pleaded by him that the E.P. schedule properties are the self-acquired properties of the first plaintiff and he alone succeeded to all the properties of his father. The Court below has not examined this aspect. Therefore, the matter is to be remitted to the Lower Court for the purpose of ascertaining whether the E.P. schedule properties to the extent of half share belonged to the deceased 1st plaintiff, and whether the petitioner succeeded to the same. If so, the lower Court may pass a decree against the property of the deceased 1st plaintiff (J.D.R.) in the hands of the 2nd plaintiff (J.D.R.).

I, therefore, hold that the respondents are entitled to proceed with the E.P. to the extent of 50% of the share of the property of the deceased 1st plaintiff in the hands of the second plaintiff. As regards the remaining 50% of the share, the Lower Court is directed to hold an enquiry as to whether the property belonged to the deceased 1st plaintiff and petitioner succeeded to the property of the deceased 1st plaintiff under a will. If so, proceed with the execution.

The impugned order of the lower Court is, therefore, set aside and the matter is remanded to the lower Court as directed above.

Revision Petition is partly allowed. Costs will abide the result in the E.A.