Section 52: Enforcement of decree against Legal representative:
Section 52 deals with a case where the decree is passed against the legal representative
of the judgement-debtor.
Section 52 (1) empowers a creditor to execute his decree against the property of
deceased in the hands of legal representative so long as it remains in his hand. For
application of this clause the decree should have passed against the party as the legal
representative of the deceased person, and it should be for the payment of money out of
the property of the deceased.
Section 52 (2) empowers a creditor to execute his decree against the legal representative
personally if he fails to accounts for the properties received by him from deceased
person.
Exception to section 52: 1. Court can implement the decree against the personal
property of the legal representative provided if he is avoiding, neglecting or evading to
make the payment from the property of deceased.
Where he has misutilized the property of deceased and where the legal representative
has alienated the property of the deceased person.[viii]
Section 53: Liability of ancestral property.
No legal representative should be held personally accountable where the suit has been
filed against a joint Hindu family unless he has received some property of joint Hindu
family.
Under pious obligation if has received the property of joint Hindu family then will be
held liable. Where the decree has been passed against Karta, no execution be made
against the son under pious obligation if the decree is passed after partition. Event after
partition a son can be held liable if suit was pending before partition.
The son will be held accountable if after the death of Karta the decree has been
executed and son has distributed the property of Karta among themselves. The member
of joint Hindu family will be held liable if Karta has taken debt for moral purpose or
family purpose.
The nature of suits determines how decree should be implemented.
Illustration: a promissory note has been executed by the father for the purpose of
borrowing money. After the death of father the creditor instituted proceeding against
son.
Where suit is filed basing on promissory note first it will be seen that whether suit is
maintainable or not- if it is filed within three year then the suit will be maintainable.
General rule is that son will be held liable if they have received ancestral property.
Where the son is not having knowledge about execution of promissory note, in such
case will not be held liable even though has received the ancestral property.[ix]
Section 54: Partition of estate or separation of share.
Section 54 comes into play when a decree has been passed for partition, or for the
separate possession of a share of an undivided state paying revenue to the government,
that is the partition of the state or share will be made by the collector. However if the
collector refuses to make the partition of the revenue paying property, the civil court can
do so.[x] To attract the provision of this section it is not necessary that the plaintiff
should ask for the division of government revenue.
Section 54 deals with a case where though the civil court has the power to pass a decree
yet it is not competent to execute the same. Under this section the execution of decree
shall be made by collector.
CHAPTER 4: PROCESS FOR EXECUTION
Order 21 rule 24 and 25 talks about process for execution.
Rule 24: process for execution
The court has inherent power to defer issue of process as envisaged under rule 24 and
can give time to judgement-debtor in appropriate cases.
Rule 24 prescribes the procedure in case of execution of decree. In these matters the
court exercises judicial discretion, which cannot be interfered with by the district judge
by issuing administrative order.
According to 24(3) execution must be completed by the date specified on the process
for the purpose- Warrants for delivery of possession, therefore, ceased to be executable
after expiry of the date appearing on the warrant.
After the process of execution is issued, rule 17 of order 21 cannot be invoked for
amendment of execution application. If the amendment seeks to change the nature of
execution, the power under section 151 and 153, also cannot be invoked.
Execution proceeding on the death of the decree-holder:-
Possession certificate under Section 214 of Indian Succession Act 1925, will not be
necessary for continuation of proceeding by his legal Heirs, even if legal Heirs are not
brought on record, the execution proceeding will not abate.
Delivery of possession to the decree-holder without notice to Judgement-debtor is not
proper:
Application by judgement-debtor for re-delivery of the possession on the ground that he
had no notice of the execution proceedings, dismissed by the trial court, however
allowed by the High Court in revision, held, re-delivery of possession to the judgement-
debtor was not proper, however, compensation of Rs, 2,000 was awarded to the
judgement-debtor.
Execution of decree
Notice under Order 21 Rule 21 is necessary only when the decree holder files an
execution of decree for the first time against the legal representative of the deceased.
RULE 25: Endorsement on process :
The officer who entrusted with the execution of the process, shall endorse upon the
same date and the manner in which it was executed and also endorsed upon in the
reason of delay and in case the process was not executed, will also state reasons thereof.
However a person cannot be re- arrested on the ground of absence of endorsement.[xii]
