Mahendera Verma vs Suresh T. Kilachand
2019 Latest Caselaw 3281 Del

$~6.
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
+    CS(OS) 2220/2007
     MAHENDERA VERMA                                     ..... Plaintiff
                      Through: Ms. Ankita Bajpai and Ms. Geetika
                                  Sharma, Advs.
                               versus
     SURESH T. KILACHAND                              ..... Defendant
                      Through: Mr. Rajshekhar Rao, Ms. Meghna
                                  Mishra, Mr. Dheeraj P. Deo, Mr.
                                  Raghav Kacker and Mr. Raghuveer
                                  Kapur, Advs.
     CORAM:
     HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
                      ORDER

% 18.07.2019 IA No.14605/2017 (u/O IX R-13 CPC) & IA No.14606/2017 (u/S 151 CPC).

1. The counsel for the defendants/applicants states that the application for setting aside of the ex parte decree dated 10th September, 2013 has been filed by the three sons of the deceased defendant. It is informed, (i) that the plaintiff instituted this suit for recovery of Rs.20 lacs paid as advance for purchase of a property owned by the defendant, with interest thereon; (ii) that the defendant was contesting the suit; (iii) that the defendant died on 15th January, 2012; (iv) that an application for substitution of the applicants in place of the defendant was made in the suit and notice thereof ordered to be issued and served ultimately by publication and whereafter ex parte decree dated 10th September, 2013 passed; and, (v) that one of the applicants is a resident of Bombay and the other two applicants, though residents of Delhi, are residents of different address than the deceased defendant. Setting aside of the ex parte decree is sought on the ground of the applicants as legal

heirs of deceased defendant having not been duly served.

2. I have enquired from the counsel for the applicants, whether the deceased defendant had taken a defence of having suffered a loss on account of breach alleged of the Agreement of Sale of immovable property, by the plaintiff, and made a Counter Claim therefor.

3. The counsel for the defendants/applicants fairly states that it was not so done.

4. Once it is so, the plaintiff in accordance with the dicta of the Supreme Court in Kailash Nath Associates Vs. Delhi Development Authority (2015) 4 SCC 136 and followed by this Court in Palm Art Apparels Pvt. Ltd. Vs. Enkay Builders 2017 SCC OnLine Del 12766, Mera Baba Pvt. Ltd. Vs. Ram Lubhaya Puri 2018 SCC OnLine Del 9502, Klintoz Pharmaceuticals Pvt. Ltd. Vs. Ravinder Shankar Mathur 2018 SCC OnLine Del 11954 and Satish Verma Vs. Garment Craft (India) Pvt. Ltd. 2018 SCC OnLine Del 6829 would be entitled to the decree in any case and I have enquired from the counsel for the defendants/applicants, as to what purpose this exercise will serve.

5. Attention of the counsel for the defendants/applicants has also been invited to Article 62 of the Schedule to the Limitation Act, 1963 read with Section 55(6)(b) of the Transfer of Property Act, 1882, which makes such monies a charge on the immovable property, if the purchaser is not in breach of the agreement and provides for a limitation of 12 years for recovery thereof. It has been put to the counsel for the defendants/applicants, that on the said reasoning, realisation of the decretal amount can also be made from the property agreed to be sold, even though stated to have been since sold.

6. The counsel for the defendants/applicants states that it is also the plea of the defendants/applicants, that they have not inherited any estate from the deceased defendant, to be liable for payment under the decree.

7. However, for adjudication of the said plea, the need to set aside the decree does not arise because the said plea, even if taken, is to be adjudicated in execution proceedings and not in the suit. Reference in this regard may be made to Section 52 of the Code of Civil Procedure, 1908 (CPC) which provides that "where a decree is passed against a party as the legal representative of a deceased person, and the decree is for the payment of money out of the property of the deceased, it may be executed by the attachment and sale of any such property", and that "where no such property remains in the possession of the judgment-debtor and he fails to satisfy the Court that he has duly applied such property of the deceased as is proved to have come into his possession, the decree may be executed against the judgment-debtor to the extent of the property in respect of which he has failed so to satisfy the Court in the same manner as if the decree had been against him personally". The position is made further clear by Section 50 of the CPC, sub-section (1) whereof while permitting execution against legal representative of the deceased, in sub-section (2) provides "where the decree is executed against such legal representative, he shall be liable only to the extent of the property of the deceased which has come to his hands and has not been duly disposed of; and, for the purpose of ascertaining such liability, the Court executing the decree may, of its own motion or on the application of the decree-holder, compel such legal representative to produce such accounts as it thinks fit".

8. As far back as in Lallu Bhagvan Vs. Tribhuvan Motiram MANU/MH/0023/1889, it was held by a Division Bench of the High Court of Bombay that a decree ought to have been made against the defendants as representatives of their father, whether they had inherited any property or not; if they had not inherited any property, the only result would have been that the decree could not have been executed against them. To the same effect is the dicta of the High Court of Nagpur in Shankarlal Vs. Ganesh Singh AIR 1926 Nag 170, laying down that a suit against the legal representatives of a deceased debtor should not be dismissed on the mere ground that the defendants are not in possession of any portion of the estate left by the deceased. Again, in Ranjitsingh Vs. Mt. Narmadi AIR 1931 Nag 173, it was held that the CPC does not contemplate determination of the question, whether the legal representative has or has not the assets in his possession, in the course of the suit; a decree may be passed against the legal representative of a deceased person, without proof that the deceased left any property; the decree passed against the legal representative only declares his liability to account for the assets of the deceased debtor in his hands; consequently, it is not necessary to enquire in the suit, as to whether the legal representative had any assets of the deceased in his possession or not, though this plea can be taken in execution. The Full Bench of the High Court of Madras also in Hamidgani Ammal Vs. Ammasahib Ammal AIR 1941 Mad 898 held that questions relating to the property attached must be decided in execution proceedings arising out of a money decree and not by way of a separate suit because the correctness of the decree is not called into question. The same High Court, again in Venkatasami Naidu Vs. Sornammal 1968 SCC OnLine Mad 103 held that as the liability where the

decree is executed against a legal representative is of the property of the deceased debtor, the initial burden is upon the decree-holder to establish that the property proceeded against is the property of the deceased; when the representative denies that a particular property proceeded against is the property of the deceased, the matter has to be decided in execution proceedings, as is clear from Section 52(2) of the CPC. I also had an occasion to deal with the issue in Nawal Singh Vs. Mehant Narain Dass 2013 SCC OnLine Del 5104 where it was held that a decree for recovery of money against the legal heirs of a deceased debtor can be executed only from the asset / property, if any left by the deceased judgment-debtor. Mention may also be made of New India Motors Pvt. Ltd. Vs. S.P. Duggal 1979 SCC OnLine Del 44, The Board of Trustees of the Port of Bombay Vs. A. Kumar & Co. 2003 SCC OnLine Del 249 and Ramesh Chand Vs. Attar Singh 2015 SCC OnLine Del 13116.

9. The counsel for the defendants/applicants has also not disputed the aforesaid legal position.

10. The counsel for the defendants/applicants then suggests mediation.

11. The counsel for the plaintiff, as usual states that she will have to take instructions.

12. If the counsels start seeking adjournments to take instructions, whenever a question is put to them, even if on a pure issue of law, the proceedings cannot be carried forward and it is better that instead of counsels, the litigants themselves start appearing in the Courts so that at least such excuses are not given.

13. At least one of the applicants and the plaintiff to appear in person before the Court on 5th August, 2019, to explore whether there are any elements of settlement, which are necessary for reference to mediation.

Interim orders to continue.

RAJIV SAHAI ENDLAW, J.

JULY 18, 2019 „pp/bs‟..