Pulikkot Puthan Veetil Madhavan Nair and Another vs Choorapra Unnitha

Curgenven, J.—This case relates to the execution of a decree for redemption of a mortgaged property. It declared defendants 1, 2 and 5

entitled to the mortgage amount of Rs. 1,000 and the decree-holder entitled to arrears of rent amounting to Rs. 1,569-13-9, together with future

rents and the latter was further authorized to set off his dues against the mortgage amount. There was then this provision : that the plaintiff do

recover from defendant 1 and from the assets of the deceased Chandu, the original mortgagee, the arrears of rent, future rent and costs as

declared above; less the mortgage amount of Rs. 1,000. The decree-holder proceeded to attach some property, as the assets of Chandu, in the

possession of defendant 5, a surviving widow. The District Munsif held that the properties so attached were liable to sale in execution of the

decree. The District Judge has reversed this decision, on the ground that the decree made no order against defendant 5 for payment of the money.

Its merely stated that the money could be recovered ""from the assets of Chandu"" without adding in whose hands these assets were to be found.

As a general proposition it is not disputed that a decree must be against a person, and not merely against some-thing which is not a person, as

e.g., the estate of a deceased person though it may operate upon such an estate by force of a direction to a person, who has the estate in his hands

to discharge the judgment debt out of it. This is what Section 52, Civil P.C., provides for, where the decree ""is passed, against a party as the legal

representative of a deceased per. son"", a condition the necessity for which is pointed out in Kaliappa Servaikaran v. Varadarajulu (1910) 33 Mad.

Though payment has to be made only out of the assets of the deceased, the decree, it is observed, is none the Jess a decree against the legal

representative. The phrase ""out of the assets of the deceased,"" it would seem, is merely a restrictive qualification. That this is the intention of

Section 52 of the Code has been recognized also by a learned Judge of the Bombay High Court in Champaklal Rupchand v. Rayachand 1932

Bom. 522. It is unnecessary to pursue this point further as it has very rightly been conceded. The result is that the learned District Judge is right

unless it is possible to construe the decree in this suit so as to read ""from the assets of the deceased Chandu in the hands of defendant 5.

It is true that the person sought to be made liable was a party to the decree, but in her case nothing more is said than that jointly with defendants

1 and 2 she is entitled to the mortgage amount of Rs. 1,000 against which the decree-holder is entitled to set off the rent due. If the decree had

''stopped there, no provision would have been made for recovery by the decree-holder of the balance due to him, and we have to read on to

ascertain in what manner he is to recover it. He may proceed against defendant 1 personally. Nothing is said about the liability of the other

defendants, nor is it possible to infer, from the earlier reference to defendant 5 that when the deceased''s assets were declared to be liable there

was an implied authority to pursue them in her hands. The decree was in this respect defective and inexecutable, and the proper course would have

Iain in an application to the Court which passed it to amend it. This civil miscellaneous second appeal is dismissed with costs.