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Sheeja vs Chandra Babu on 25 March, 2009

Kerala High Court
Sheeja vs Chandra Babu on 25 March, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

RP.No. 324 of 2009()


1. SHEEJA, D/O.SUSEELA, PALLINADA VEEDU,
                      ...  Petitioner

                        Vs



1. CHANDRA BABU, ULLAS, MELATHUMELE,
                       ...       Respondent

                For Petitioner  :SRI.PIRAPPANCODE V.S.SUDHIR

                For Respondent  : No Appearance

The Hon'ble MR. Justice HARUN-UL-RASHID

 Dated :25/03/2009

 O R D E R
                              HARUN-UL-RASHID, J.
                          ----------------------------------------
                                R.P.No. 324 of 2009
                                            in
                             C.R.P No. 644 of 2006
                          ----------------------------------------
                   Dated this the 25th day of March, 2009

                                        ORDER

This review petition is filed by the respondent in the C.R.P No. 644

of 2006. This Court by the impugned order dated 8.1.2009 allowed the

said C.R.P and directed the execution court to restore the E.P back to file

and to proceed accordingly. The parties hereinafter referred to

respondent/plaintiff and review petitioner/defendants.

2. The learned counsel for the review petitioner submitted that

there is a mistake in stating that the decree passed against the

defendants was not in their own capacity but as the legal representatives

of deceased Mr.P.George and therefore the impugned order requires

review . It is true that the said George is the debtor. In fact the trial court

passed a decree against the defendants (review petitioner) as the legal

representatives of the debtor. The trial court opined that as per Section

52 of the Code of Civil Procedure, where a decree is passed against a

party as the legal representative of a deceased person and the decree is

for payment of money out of the property of the deceased, it may be

executed by attachment and sale of any such property. The direction of

this Court in the impugned order under challenge, does not mean that it

restricts realisation of money from the assets of the deceased P.George .

So this court directed the execution court to proceed with the E.P. There

is a apparent mistake in the sentence ” But the trial court passed a

-2-

decree fastening liability on the defendants jointly and severally not in

their own capacity but as the legal heirs of deceased Mr. P.George.”

The same is corrected as “But the trial court passed a decree fastening

liability on the defendants jointly and severally in their own capacity but

not as the legal representatives of deceased Mr.P.George.”

3. Both sides contested the suit and both sides have no case

that the defendants are liable to pay the amount in their individual

capacity. Therefore the decree ought to have been passed in this case

subject to the rider under Section 52 of the C.P.C. Unfortunately the

decree does not contain any such rider Therefore the dismissal of the E.P

is bad in law and that is the reason why this Court directed the execution

Court to proceed with the E.P. In the circumstances it is made clear that

the defendants in the suit are free to move the trial court for review of the

decree and judgment if so advised.

4. The grounds raised by the review petitioner cannot stand.

This review petition is dismissed without prejudice to the right of the review

petitioner to move the trial court for review of the decree and judgment.

The sentence in paragraph 3 of the order dated 8.1.2009 in C.R.P. No.

644 of 2006 is corrected as stated above.

(HARUN-UL-RASHID, JUDGE)
es.

HARUN-UL-RASHID, J.

—————————

R.P.No. 324 of 2009
in
C.R.P No. 644 of 2006

—————————-

ORDER

25th March, 2009

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