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
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.
R.P.No. 324 of 2009
C.R.P No. 644 of 2006
25th March, 2009