M. Gopal vs P. Thangadurai and Others

M. Chockalingam, J.—An order of dismissal made by the learned District Munsif, Rasipuram, in R.E.P. No. 60/2001 seeking attachment

and sale of an immovable property pursuant to a decree in O.S. No. 213/98 is challenged by the petitioner/plaintiff.

The Court heard the learned Counsel on either side.

It is not in controversy that a decree came to be passed in favour of the plaintiff in O.S. No. 213/98 filed by him on the strength of a promissory

note. The case of the plaintiff even as per the pleadings was that the Suit Promissory Note was executed on 18.8.1996 by the first defendant.

According to the petitioner, the Suit was filed during the life time of the first defendant, and a decree also came to be passed on 26.4.2001, and

pending the Suit, the original borrower namely the first defendant, died in the year 2001, and the legal representatives, who are the wife and

children, have been added as defendants 2 to 5 and, thus, a decree came to be passed against the defendants 2 to 5, and the E.P. was filed for

recovery of the decretal amount. The respondents appeared before the lower Court in the execution proceedings and took the plea that the

property which is sought to be attached, is their property by way of settlement made by the first defendant in the year 1997 and, thus, they have

become the absolute owners of the property; that when the Suit was filed and decreed, the property did not belong to the first defendant, who

executed the promissory note, and under the circumstances, the property which belonged to the respondents, should not be proceeded against.

After making an inquiry, the Court below dismissed the E.P. Aggrieved over the same, this Revision has been brought forth.

The only contention put forth by the learned Counsel for the revision petitioner is that the property in question was actually the property of the

first defendant; that the settlement deed was executed in order to defeat the rights of the creditor namely the decree holder, and under the

circumstances, the lower Court should have proceeded against the property in question, but failed to do so, and hence, the order of the lower

Court has got to be set aside, and a direction be given to the lower Court to proceed with the EP.

Countering the above contentions, the learned Counsel for the respondents would submit that in the instant case, the settlement deed was

executed in 1997 by the first defendant in favour of the wife and children, who are the respondents herein; but, the Suit itself was filed in 1998; that

the respondents were added as legal representatives of the deceased-first defendant and, thus, the property which came to their hands, is their

personal property; that it was owned by them from 1997 onwards; that the decree holder can proceed only against the property of the original

debtor which came to the hands of the legal representatives, but not so in the instant case; that the property in the hands of the legal representatives

is not the property of the debtor, but their property which came to their hands in 1997; that the lower Court was perfectly correct in dismissing the

E.P. and, hence, the order of the lower Court has got to be sustained.

After careful consideration of the rival submissions made, this Court is of the considered opinion that the Revision does not carry any merit

whatsoever. In the instant case, admittedly, the decree was passed on 26.4.2001. During the pendency of the Suit, the first defendant, the original

debtor, died, and the legal representatives, the respondents 2 to 5, were added. Even in 1997, a settlement deed was executed by the first

defendant in respect of the property in question. By the said testament, the respondents have become the absolute owners of the property.

Needless to say that in a given case, where a decree is sought to be executed against the legal representatives, it could be executed only to the

extent of the property which has come to the hands of the legal representatives from the judgment-debtor. In the instant case, the property what

was sought to be attached, belonged to the respondents and was not the property of the judgment-debtor. Under the circumstances, the lower

Court was perfectly correct in dismissing the E.P. Nothing requires interference. Accordingly, this Civil Revision Petition is dismissed. No costs.

However, there is no impediment for the petitioner to seek for appropriate remedy if available and if so advised.