JUDGMENT
S.C. Mohapatra, J.
1. This is a civil revision by a legallre- presentative of a deceased judgment-debtor.
2. Petitioner is daughter of the judgment-debtor who died leaving behind widow, two sons and petitioner as legal representatives. For realisation of decretal dues against the judgment-debtor, decree- holder sought to proceed against properties of deceased judgment- debtor described in various lots in hands of his legal representatives. Since decree-holder was of opinion that Lot. No. 1 may be sufficient to get the decree satisfied the prayed for proceeding against that lot first for satisfaction of the decree before proceeding against other lots. Widow of judgment-debtor made a prayer that her 1/4th interest in the properties of her husband may be excluded from being put to sell. Executing Court accepted prayer of the decree-holder as well as the widow of judgment-debtor. Thus 1 /4th interest of the widow in Lot No. 1 stood excluded.
3. After the interest of the widow was excluded petitioner filed an application that her 1/4th interest in the properties of her father may also be excluded and Lot No 1 should not be proceeded against firsts Executing Court having refused both the prayers, this Civil Revision has been filed as no appeal lies against the order.
4. Objection to permission for proceeding against Lot No. 1 first has no force since no cogent ground has been made out touching jurisdiction of executing Court in that respect. Second objection, how- ever, requires careful consideration.
5. Mr. S. P. Misra, learned counsel for petitioner relied upon decision of this Court reported in 47 (1979) CLT 513 (Sudhamani Dei alias Sundarmani Mohanty v. Sadananda Mohanty and Anr.)and submitted that like widow of a judgment-debtor a daughter is also a statutory heir under the Hindu Succession Act, 1956 and thus, these being no distinction between the property of a judgment-debtor in hand of legal representatives like widow and daughter same principle is to be applied.
6. In order to appreciate submissions of Mr. Misra, first it is to be examined how decretal dues of a deceased judgment-debtor can be realised by a decrees-holder in execution of the decree. Unless a Statute clearly prohibits recovery of dues from a judgment debtor, decree-holder has a right to realise the same in the manner provided in Section 51, CPC. A decree for payment of money can be executed by attachment and sale of any property belonging to the judgment-debtor which is one of the modes. Property passes to the legal representatives on death of the judgment-debtor. Therefore, it has been provided in Section 50, CPC. that decree against the judgment-debtor which has not been fully satistied. can be executed against legal representatives of the deceased judgment- debtor. In Section 50(2) CPC, however liability of the legal representative has been limited to the extent of property of the deceased which has come to their hands.
7. It has been observed in the decision repotted in AIR 1966 SC 792 (N. K. Mohd. Sulaiman Sahib v. N.C. Mohd. ismal Saheb and Ors.) that rule in Sac. 50, CPC is not a part of personal law but a law of procedure applicable to Muslims also. This observation makes it clear that Section 50, CPC authorises the executing Court to proceed against the property of a deceased judgment-debtor in hand of his legal representative without any distinction. Meaning of ‘legal representative’ has been defined in Section 2(11), CPC.
8. Since sons and other descendants governed under Hindu Law inherit ancestral property by survivorship. Section 53, CPC extended scope of Sections 50 and 52, CPC and added to the said provision explaining that certain ancestral properties in their hands shall be deemed to be property of the deceased whose legal representatives they are. This position has been clarified by the Supreme Court in the decision reported in AIR 1952 SC 170 (Pannalal and Anr. v. Mt. Naraini and Ors.). However, widow and daughter not being descendants are not liable under Sec, 53, CPC. Their liability to discharge the decree remains confined to provisions in Section 50 or 52, CPC, as the case may be. This has been laid down by this Court in 47 (1979) CLT 513 (supra) where it has been held :
“If the widow would not come within the ambit of the phrase ‘other descendants’ she would not have liability Under Section 53 of the Code.”
9. On an application of the aforesaid principle it is clear that where property of husband came to hand of the widow not as legal re- presentative but independent of it, such property in her hand though once belonged to her husband, would not be proceeded against for discharge of decree against or debts of her husband. If property of widow came from other sources, question of discharge of the decree or debts of her husband from out of those properties does not arise. Therefore, executing Court is to be satisfied on enquiry whether the property sought to be proceeded against her come to hand of the widow of legal representative of her husband or otherwise: Daughter’s liability is also to be examined in respect of her property in the same manner.
10. Where ancestral property of judgment-debtor governed under Hindu Law is to be proceeded against, there is no prohibition to proceed against those in hand of the legal representative either Under Section 50 or Section 52, CrPC.Sueh property whether self-acquired or ancestral in hand of widow and other legal representatives of the judgment-debtor can be proceeded against. Added to it ancestral property in hand of the son or other descendants who inherited the same not as heir only but by survivorship can be proceeded against for satisfaction of the decree. However, widow or other legal representative who are not descendants under the Hindu Law are not required to be proceeded against Under Section 53, CPC, as the deeming provision is not required to be made applicable to such property. Conclusion in 47 (1979) CLT 513 (supra) which reads as follows :
“On the analysis present above, it should be held that the widow’s share in the husband’s property received by her under the provisions of the Hindu Succession Act would not be available for execution of the decree against the deceased husband and her share therefore, is immune.”
is to be read in the context of analysis of Section 53, CPC and therefore, this decision makes it clear that by applying Section 53, CPC, such property cannot be proceeded against. It has not been laid down in the decision that by applying the provision Under Section 50 or Section 52, CPC, it cannot be proceeded against. While the decision is a precedent in respect of the principle laid down, it cannot be extended while interpreting Section 50 or Section 52, CPC.
11. In 1987(II)OLR 620 (M/s Kishore Transport and Ors. v. M/s Ashok Leyland Ltd..) decree in respect of debts of deceased was against the legal representatives who were the defendants in the suit filed after death of the debtor. In the decree, it was stated that the decretal amount can be recovered from assets of the legal representatives. When assets of legal representatives were proceeded against, the widow and daughter took objection that their interest in the property of the deceased cannot be proceeded against. They relied upon the principle laid down in 47 (1979) CLT 513 {supra) while accepting that widow and daughter are not descendants of the deceased and property in their hands cannot be proceeded against Section 53, CPC this Court held that executing Court is to execute the decree as it is and cannot go behind the decree. When decree for money was personally against the legal representatives to be realised 1rom their assets, it is not open to them to raise the objection. This decision also supports the conclusion by me that 47 (1979) CLT 513 (supra) lays down that property of deceased in hand of legal representatives who being widow and daughter are not descendants, cannot be proceeded against by applying Section 53, CPC. In this decision effect of Section 50 or Section 52, CPC was not considered.
12. In 32 (1990) OJD 399 (Civil) (Laxmidhar Sahu v. Smt. Padmini Tripathy and Ors.) salary of widow was sought to be attached for realisation of decree for money against her husband. It was held that the same is not permissible.
13. In 33 (1991) OJD 133 (Civil) (M/s Rao and Sons v. Saudamini Misra and Ors.) suit was filed against the debtor. On his death during pendency of the suit, widow and daughter were substituted as legal representatives. Trial Court dismissed the suit against widow and daughter since they are not descendants of the deceased defendant, This Court held that a decree is to be passed against them as they are legal representatives. How the decree obtained is to be executed is a matter to be ascertained thereafter. This decision has no application to the present case.
14. Mr. S.P. Mishra, relied upon the decision reported in AIR 1962 A.P. 243 (Kollapudi Govindamma v. Mandra Bullemma) In the said decision, decree against husband was sought to be executed against widow in respect of property inherited by her from her son. It was held that Section 53, CPC is not attracted to bring such property in her hands to execute the decree. This decision is, thus distinguishable.
15. Mr. Mishra relied upon a decision reported in AIR 1937 Mad. 472 (Subbaratnam Chettiar v. Gunavanthalal Vidyasankar). In this decision question was whether surviving members other than sons of a deceased member of the joint family are his legal representatives to be substituted in respect of a suit on pronote executed by the deceased member. This decision requires no consideration as it is distinguishable.
16. Mr. P. Kar, learned counsel for decree holder relied on a passage from Mullah’s Hindu Law and submitted that in Dayabhag School of Law there is no right of wife, son or daughter during life-time of a male member over the ancestral properties and submitted that where judgment-debtor belongs to Dayabhag School of Law, all legal representatives inherit the ancentral ancestral property as legal representatives only and, therefore, property of the judgment-debtor in their hands can be proceeded against for realisation of debts. I am not inclined to examine this submission as such a question depending on facts was not raised before the executing Court. it is open to the executing Court to consider the question if moved by the decree-holder.
17. As I find executing Court has not made any enquiry as to the nature of property (whether ancestral or self-acquired) when it was of the judgment debtor and how the same came to the hands of the legal representatives. This question has material bearing for considering the scope of proceeding against the properties in hand of various representatives. If moved, on any fresh question which was not raised or decided specifically, executing Court shall consider the same. 1 make it clear that procedure laid down in Section 63, CPC cannot be acceted in this case and liability under Section 50, CPC is to be considered. Since the matter is Jong delayed executing Court shall do well in finalising the discharge of the decree at an early date preferably before Puja holidays if there is no other impediment.
18. In result, civil revision is allowed to the limited extent. No costs.