PETITIONER: RATNA ALIAS RATNAVATI(SMT) Vs. RESPONDENT: SYNDICATE BANK AND OTHERS DATE OF JUDGMENT24/11/1994 BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. VENKATACHALA N. (J) CITATION: 1995 SCC (1) 407 1994 SCALE (5)283 ACT: HEADNOTE: JUDGMENT:
ORDER
1. Delay condoned.
2. The father of the petitioner was the 2nd defendant in
OS No. 232 of 1986 filed in the Court of Civil Judge at
Udipi. The suit had been filed under Order 34 Rule 4 for
the recovery of the money due under an hypotheca. A
preliminary decree was passed in the suit on 28-6-1989 on
the basis of a joint memo filed by the parties. Thereafter,
Muthu Marakala, the second
+ From the Judgment and Order dated 19-4-1994 of the
Karnataka High Court in C.R.P. No. 782 of 1994
408
defendant/surety, died. An Application No. 316 of 1991, to
pass final decree, when was filed by the plaintiff, it also
made an application to bring the petitioner as legal
representative of deceased second respondent, which was
opposed on the ground that such application was barred by
limitation and the preliminary decree, itself, had abated
after the expiry of 90 days from the date of death of
defendant 2. An objection had also been raised that the
petitioner was not liable to pay the amount of the decree
unless principal debtor-defendant was proceeded against.
That application was allowed by the trial court. On
revision, while leaving open the second question, the High
Court of Karnataka by its impugned order dated 19-4-1994
made in CRP No. 782 of 1994 upheld the order of the trial
court.
3.Shri Santosh Hegde, learned Senior Counsel for the
petitioner, contended that though a preliminary decree had
been passed by the trial court, it, by itself, was not
executable unless final decree thereon was passed. In
making the final decree, an adjudication on issues which
arise, needs to be made. Therefore, the legal
representatives of the deceased defendant 2 should have been
brought on record within 90 days from the date of his death
under Article 120 and if 60 days’ time expires after the
expiry of 90 days, an application for setting aside
abatement under Article 121 of Schedule to Limitation Act,
1963 should have been made. Since such applications had not
been filed within the periods of limitation, the preliminary
decree itself, stood abated. The trial court and the High
Court were not right in directing to implead the legal
representative of the second defendant. We find no force in
the contentions.
4.It is seen that the decree in question is a consent
decree, which had become final. The preliminary decree made
under Order 34, Rule 4 CPC clearly mentions in clause (1)
that “the defendants jointly, severally and personally do
pay to the plaintiff a sum of Rs 7,31,984.10 with future
interest on Rs 3,45,461.55 (loan account Serial Nos. 1, 3,
4, of the ‘C’ Schedule) at the rate mentioned therein”. It
is, thereby, clear that the adjudication of and fastening
the liability on the respective defendants became
conclusive.
5. Clause (5) of the preliminary decree mentioned:
“And it is hereby further ordered and decreed
that, if the money realised by such sale shall
not be sufficient for payment in full of the
amount payable to the plaintiff as aforesaid,
the plaintiff shall be at liberty (where such
remedy is open to him under the terms of his
mortgage and is not barred by any law for the
time being in force) to apply for a personal
decree against the defendants for the amount
of the balance; and that the parties are at
liberty to apply to the Court from time to
time as they may have occasion, and on such
application or otherwise the Court may give
such directions as it thinks fit.”
From this, it is contended that a further adjudication needs
to be made and that, therefore, it is necessary to bring the
legal representatives within the limitation prescribed under
Articles 120 and 121 of Schedule to the
409
Limitation Act, 1963. It is seen that clause (1) determined
a personal liability against each individual defendant. But
since suit is based on hypotheca, a preliminary decree was
passed. Several clauses are introduced for diverse steps to
be taken. Rule 4 of Order 34 provides that the court should
pass a preliminary decree in terms of clauses (a), (b), (c)
and (i) of sub-rule (1) of Rule 2. It further directs that
in default of the defendant paying the amount as mentioned
therein, the plaintiff shall be entitled to apply for a
final decree directing that the hypotheca or sufficient part
thereof to be sold and the proceeds of the sale (after
deducting therefrom the expenses of the sale) to be paid
into court and applied in payment of what has been found or
declared under or by the preliminary decree as due to the
plaintiff together with such amount as may have been
‘adjudged’ in the appeal against preliminary decree etc. due
in respect of subsequent costs, charges, expenses and
interest. The balance, if any, be paid to the defendant or
other persons entitled to recover the same. Clause (5) says
that “in the event of non-payment and the decree debt
remains unrealised, for such balance amount due, plaintiff
has been empowered to apply for a personal decree against
the defendant. It would be in terms of the mortgage and is
not barred by any law. The defendant(s) is/are required to
pay the money within the time specified in the preliminary
decree and in default, the plaintiff was directed to proceed
against the defendant(s) in terms of final decree.
Thereafter, the decree holder is entitled to proceed against
the judgment-debtors individually, severally and jointly.
6. Order 22 Rule 1 says that “the death of plaintiff or
defendant shall not cause the suit to abate if the right to
sue survives”. Rule 2 says that in case of multiple
plaintiffs or defendants, if any of them dies and where the
right to sue survives to the surviving plaintiff or
plaintiffs/defendants, the court shall cause an entry to
that effect made and shall proceed with the suit under Rule
4, if the right does not survive against the surviving
defendants alone, on an application made, the court shall
cause the legal representative substituted and shall proceed
with the suit. A decree passed confers rights and imposes
liabilities which are fixed until the decree is reversed or
varied in appeal. The preliminary decree declares rights of
the plaintiff and liabilities of the respective defendants
and they become final. The suit would not abate between the
date of preliminary decree and final decree. In this view
of the matter, the question which emerges is whether it is
not necessary for the decree-holder to make an application
within the limitation prescribed under Article 120 of the
Schedule to the Limitation Act, 1963 to have the legal
representatives brought on record. Section 52 CPC
adumbrates that a money decree passed against the legal
representative of the deceased defendant, out of the
property of the deceased in his hands, may be executed by
attachment or sale of that property. If the legal
representatives fail to satisfy the court that he duly
applied the property to discharge the debt or the court is
not satisfied of his so doing, the court would proceed
against the legal representatives personally and to apply
the property by sale to satisfy the decree debt. At the
time when the application for passing the final decree is
410
filed, it is enough if the legal representatives are
impleaded, all or any of the legal representatives or one of
the LRs of the deceased defendant judgment debtor to
represent the estate of the deceased. If death of defendant
takes place pending passing of final decree they may be
brought on record under Section 151 CPC or Order 1 Rule 10
CPC.
7.Considered from this perspective, we are of the considered
view that the High Court was right in its conclusion that
there is no need to make an application within the period of
limitation as provided under Articles 120 and 121 of the
Limitation Act to bring the LRs of deceased defendant on
record and to seek to set aside the abatement after the
expiry of 90 days.
8. The special leave petition is dismissed accordingly.
412
