Yogesh Sharma And Ors. vs Devi Dayal Ors.
1977 Latest Caselaw 48 Del

JUDGMENT

Avadh Beharirohatgi, J.

(1) The decree-holders have obtained a decree against the judgment-debtors for Rs. 9,975 and costs of the suit. The total sum due under the decree is Rs. 11,725.75. This decree was passed on January 9, 1973, by the Subordinate Judge. Then the decree-holders made an application for execution of the decree. Subsequently the execution case was transferred to this court.

(2) Manohar Lal Jain executed a promissory note on which a suit was brought against him under Order xxxvii of the Code of Civil Procedure. During the pendency of the suit Manohar Lal died on January 24, 1971. His legal representatives five sons and a daughter were brought on the record of the suit in place of the defendant Manohar Lal. The suit continued. In the end a decree was passed against the legal representatives of Manohar Lal.

(3) Manohar Lal was the owner of house No. 4738 situated at 23, Ansari Road Darya Ganj, New Delhi. The decree-holders have attached that house in execution of the decree. The legal represen- tatives of Manohar Lal made an application on April 12, 1974 that the house be released from attachment as it was exempt under the provisions of Section 60(ccc) of the Code of Civil Procedure.

(4) This application has been made by three legal representatives, viz., Sumer Chand Jain, Harish Chand Jain and Prem Chand Jain, sons of Manohar Lal, deceased. These sons of Manohar Lal say that the house in Darya Ganj "is the only residential house of the objectors/Judgment-debtors which they are ccupying and in which they are residing along with their families. As such the said house is exempt from attachment under s. 60 of the Code of Civil Procedure." This is the main ground on which they claim that the house is not liable to attachment.

(5) It is not in dispute that Manohar Lal was the father of the present objectors. Nor is it in question that Manohar Lal died during the pendency of the suit and his sons and daughter were brought on the record of the suit as legal representatives. It is also not in doubt that the pronote was executed by Manohar Lal and he took the loan on which the suit was brought. Now it is not denied that the house which has been attached by the decree-holders was the property of Manohar Lal. The question is whether his sons are entitled to claim the benefit of exemption under section 60(ccc).

(6) Clause (ccc) of section 60 says that the following particulars shall not be liable to attachment or sale, namely : "ONEmain residential house and other buildings attached to it(with the material and the sites thereof and the land immediately appurtenant thereto and necessary for their enjoyment) belonging to a judgment-debtor other than an agriculturist and occupied by him; Provided that the protection afforded by this clause shall not extend to any property specifically charged with the debt sought to be recovered."

(7) This clause was introduced in the Punjab by Act Xii of 1940.Subsequently the clause was amended in 1942 and 1960.

(8) Now the question is : Does the protection given to the judgment-debtor also extend to his legal representatives ? The clause exempts one main residential house belonging to the judgment-debtor and occupied by him. Who was the judgment-debtor ? That is the question for decision in this case. The sons of Manohar Lal say that they are the judgment-debtors as the decree was passed against them and, therefore, they are entitled to the protection afforded by clause (ccc).

(9) In my opinion the sons of Manohar Lal, the present objectors, are not entitled to the benefit of clause (ccc). They are not the judgment-debtors. They are the legal representatives of the judgment debtor. The judgment-debtor was Manohar Lal. He took the loan. He executed the pronote. The suit was brought against him. In the course of the suit he died and his legal representatives were brought on the record of the .suit under Order Xxii rule 4. Code of Civil Procedure, Obviously they were brought in their representative capacity.

(10) A legal representative is different from a judgment-debtor. Both these terms are defind in section 2, Code of Civil Procedure. A judgment-debtor means : Any person against whom a decree has been passed or an order capable of execution has been made." [2. (10)].

(11) A legal representative means : "Aperson who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or or sued." [2. (II)].

(12) It is true that the decree was passed against the sons and the daughter but it was passed against them in their representative charac- ter as the legal representatives of the deceased Manohar Lal. This distinction is apparent in the various provisions of the Code of Civil Procedure. By sub-section (2) of s. 50 where the decree is executed against the legal representative he is liable only to the extent of the property of the deceased which has come to his hands and has not been duly disposed of. Ordinarily the legal representative does not incur any personal liability. He is representing the estate of a deceased person. The decree can be executed to the extent of the property of the deceased in his hands. Nor can the legal representative be arrested in execution of a decree. Only the judgment-debtor can be arrested if a case is made out for his arrest.

(13) It, therefore, comes to this. The sons are the legal representatives of Manohar Lal deceased. They cannot be called judgmentdebtors. If they are not the judgment-debtors they are not entitled to exemption under clause (ccc). Their liability is limited to the estate of the deceased in their hands. The house in question was the property of the judgment-debtor Manohar Lal. It has devolved on the legal representatives. It can be attached and sold. This is my conclusion.

(14) Counsel for the objectors says that the sons are the judgmentdebtors as the decree was passed against them and they have been shown in the record of the case as judgment-debtors. This argument is based on a misapprehension. We have to look to the substance of the matter and see whether the legal representatives contracted the loan and incurred the liability or whether their liability is that of a person representing the estate of a deceased person. This is the essence of the definition of the legal representative. It is clear that the sons are the legal representatives and as such are not entitled to the protection of clause (ccc) which extends only to the judgmentdebtor and not to his legal representatives. In my opinion the word judgment-debtor' as used in clause (ccc) does not include his legal representative. The expression 'judgment-debtor' is controlled by the context.

(15) Counsel for the parties have referred me to Firm Gurparshad V. Kishan Chand, Air 1938 Lah. 608 (1), Dhani Ram v. District Official Receiver, Arnri^sar, Air 1943 Lahore 19(2) and Radhakisan Hakumji v. Balvant Ramji, 2nd 7 Bombay 530. (3) These cases are on clause (e) of S. 60 and deal with the question of attachability of an agriculturist's house or building etc. These cases strictly speaking are not in point for clause (e) is differently worded from clause (ccc). Clause (e) uses the term 'agriculturist'. Clause (ccc) uses the term 'judgment-debtor other than an agriculturist'. There is no direct decision on the point. At least the counsel have not been able to bring to my notice any decision on the point now falling for decision.

(16) For these reasons I would dismiss the objections but make no order as to cost.