top of page
Search

Enforcement of the Decree against Deceased

Article by Somik Jindal

Student of Vivekananda Institute of Professional Studies,

New Delhi


ABSTRACT

There are chances and a common phenomenon of the Death of a party in a suit, now the question that arrives in such a situation is that due to the death of a party the decree-holder is in a disadvantaged position and the court cannot arrive at a decision because there can be no order, judgment or decree being passed against a dead man, for a dead man cannot be heard and makes it very difficult for a court to decide the suits in such cases. But, the Civil Procedure Code, 1908 provides certain mechanisms under which a decree-holder can execute the decree and recover its money.


WHAT IS A DECREE?

According to Section 2(2) of the Civil Procedure Code, 1908 a "Decree" means the judgment passed by the court formally which decides the rights of the parties to the suit regarding all the matters and the legal consequences of the facts found. Judgment can be preliminary or final based upon the further proceedings that have to be taken before arriving at a particular decision and disposing of the suit.

Subsequently Section 2(3) and Section 2(10) of the Civil Procedure Code, 1908 provides for “Decree-Holder” which means any person in whose favour a decree has been passed or an order capable of execution has been made and “Judgment-Debtor” means any person against whom a decree has been passed or an order capable of execution has been made respectively. [1]


WHO ARE THE LEGAL REPRESENTATIVES?

"Legal Representative" according to Section 2(11) of the Civil Procedure Code, 1908 “means a person 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 sued.”[2] It means that a person is entitled by law to represent, supervise and exercise the rights of the deceased. For E.g. the son who inherits the estate of his father and administrator or executor of the estate.

EXECUTION OF DECREE

Though the term “Execution” is not defined in the act, it means carrying out, enforcing, or giving effect to the decree or a judgment being passed by the court. It enables the decree-holder to act and recover things according to the mandate of the decree being passed by the court against the judgment-debtor. The execution of decree and orders are dealt with in Sections 36 to 74 of the Code of Civil Procedure 1908 and Order 21 of the procedural law.

The Supreme Court while dealing with provisions of this code held that “So far the question of executability of a decree is concerned, the Civil Procedure Code contains elaborate and exhaustive provisions for dealing with it in all its aspects. The numerous rules of order XXI of the Code take care of different situations, providing effective remedies not only to judgment-debtors and decree-holders but also to claimant objectors as the case may be.”[3]

Also, Section 51 of the Code of Civil Procedure 1908 defines the "Powers of Court to enforce execution”

“The Court may, on the application of the decree-holder, order execution of the decree being prayed-

a) By delivery of any property specifically decreed;

b) By attachment and sale or by the sale without attachment of any property;

c) By arrest and detention in prison for such period not exceeding the period specified in section 58, where arrest and detention is permissible under that section;

d) By appointing a receiver[4]


EXECUTION OF DECREE AGAINST LEGAL REPRESENTATIVES

As previously stated execution of decree means carrying out, enforcing, or giving effect to the judgment being passed by the court and which enables the decree-holder to recover things according to the mandate of the decree being passed by the court from the Judgment-debtor.

But what happens if a person dies before the decree is fully realized? In such a case the legal representatives of the Judgment-debtor are called upon to satisfy the conditions of the decree and to compensate the decree-holder accordingly. This power of execution against the legal representatives of the Judgment-debtor and the rights of the decree-holder is defined in:-

1. Section 50(1) of the Civil Procedure Code, 1908 enunciates that after the death of the Judgment-debtor the legal representatives of him can be called upon to execute the decree which the decree-holder applies to the court to be executed before it has been fully realized by the judgment-debtor.

2. Section 50(2) of the Civil Procedure Code, 1908 specifically states that the legal representative against whom the decree is executed is only liable to the extent of the property or assent acquired by him on the death of Judgment-debtor or which has come to his hands and has not been duly disposed of and the court while executing the decree for ascertaining such liability with its own or on the application of decree-holder can compel to produce the accounts of such legal representative if it thinks fit. Even a stranger who is in possession of the deceased Judgment-debtor's property can be proceeded against as a legal representative. “It is thus well settled that legal representatives of Judgment-debtor are liable for the debts of the predecessor to the extent of the estate acquired by the legal representatives from their predecessors.”[5]

3. Section 52(1) of the Civil Procedure Code, 1908 empowers the decree-holder to execute the decree against the property of the deceased in the hands of the legal representative, if 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.

4. Section 52(2) of the Civil Procedure Code, 1908 gives powers to the decree-holder for the execution of the decree if no such property remains in the possession of Judgment-debtor and he fails to apply for the properties received by him from the deceased person, 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 legal representatives would not be proceeded personally until it has been shown that no one of them is in possession of any other property of the deceased.

Also, Section 50 is not only confined to a particular kind of decree or a cause of action. In Prabhakara Adiga v. Gowri[6], the defendant in the original suit had sold 1.68 acres of land, though the land allotted to him on partition was only 1.58 acres. He had then tried to remove and destroy the wooden fence and made an effort to forcibly dispossess the plaintiff, the owner of the neighbouring property, thereby resulting in a permanent injunction. After his death, his heirs, in violation of the decree for permanent injunction, tried to forcibly dispossess the decree-holder from his property. The Bench of Arun Mishra and Amitava Roy, JJ held that the property would also bind the legal representatives of the judgment-debtor, though normally personal action dies with the person but a decree can be executed against legal representative under Section 50 of CPC is restricted to limited kinds of causes of actions and hence the court noticed that if an injunction decree is capable of being enforced against a person other than the judgment-debtor then it can be executed equally against the legal representative of the person.[7]


CONCLUSION

As the actions of a person die with him and for a dead man cannot be heard, it becomes difficult for the court to pass any order or decree against a dead person and also stood at a disadvantage position for the decree-holder. So a decree-holder cannot file a suit against the dead party but where there is a right, there is a remedy, there are remedies provided for the decree-holder which are defined in Civil Procedure Code, 1908 under Section 50 and Section 52 which enables the decree-holder to execute its rights and recover the money out of the properties of the deceased person. Court keeping ‘Rule of Law’ as the priority in their decision made legal representative of the deceased liable because he/she is the next person and the successor of the estate of the deceased person.


[1] Civil Procedure Code, 1908, Acts of Parliament, 1908 (India) [2] Civil Procedure Code, 1908, Acts of Parliament, 1908 (India) [3] Ghan Shyam Das Gupta And Anr vs Anant Kumar Sinha, AIR 1991 SC 2251 [4] Civil Procedure Code, 1908, Acts of Parliament, 1908 (India) [5] Madhukar Sagun Karpe v. Institute of public assistance, 1998 (3) Bom CR 101. [6] 2017 SCC OnLine SC 153 [7] Prachi Bhardwaj, Section 50 CPC permits the execution of decree of permanent injunction against the legal heirs of judgment debtor, The SCC Online Blog, (February 21, 2017), https://www.scconline.com/blog/post/2017/02/21/section-50-cpc-permits-the-execution-of-decree-of-permanent-injunction-against-the-legal-heirs-of-judgment-debtor/

974 views0 comments

Comments


bottom of page