ORDER
S. Samvatsar, J.
1. This petition is filed by the petitioner under Article 227 of the Constitution of India challenging the order dated 22-7-2004 passed by III Additional District Judge. Gwalior in Case No. 93/94 x 2000 (Execution) whereby objections raised by the present petitioner dated 9-10-2001 are rejected.
2. Brief facts of the case are that respondent No. 1 Syndicate Bank filed a suit against one Krishna Raj Singh and respondents 2 and 3 for recovery of the amount advanced by respondent No. 1 to Respondents 2 and 3 and said Krishna Raj Singh. The suit was filed for recovery of Rs. 1,57,049.44 paise and was decreed vide judgment dated 24-7-1996 Annexure P/2 by the Court of III Additional District Judge, Gwalior in Civil Suit No. 93B/94.
3. During the pendency of the suit, Krishna Raj Singh, the husband of the present petitioner died and name of the present petitioner was brought on record as legal representative of deceased Krishna Raj Singh. Ultimately, the suit was decreed on 24-7-1996 and the respondent No. 1 Bank filed execution for recovery of the decretal amount against the present petitioner. During execution, decree holder proceeded against the plot which was purchased by the present petitioner on 16-1-1991 vide sale deed (Annexure P/3).
4. Petitioner raised an objection that this property was purchased by her on 16-1-1991 when her husband Krishna Raj Singh was alive. Krishna Raj Singh died on 25-5-1991 after purchase of the property. Thus, according to her, this property has not come to her hands from the property of the deceased and therefore, the said property can neither be attached nor sold in execution for recovery of the amount due towards her deceased husband. This objection is rejected by the executing Court by the impugned order by observing that the petitioner has not led any evidence to show that she has not received the said property from the deceased.
5. Contention of the learned Counsel for the petitioner is that the burden to prove the fact that the property came to the hands of the petitioner from her deceased husband was on the decree holder, while contention of the learned Counsel for the respondent No. 1 Bank is that the burden is on the objector herself and she has not led any evidence to support her allegations made in the objections. Therefore, the Court has rightly rejected the objections filed by the present petitioner.
6. For determining the question whether the burden to prove lies on the decree-holder or the objector, it is necessary to refer to Sections 50 and 52 of the Code of Civil Procedure (hereinafter, referred to as the “Code”). Said sections read as under:
50. Legal representative.- (11 Where a judgment-debtor dies before the decree has been fully satisfied, the holder of the decree may apply to the Court which passed it to execute the same against the legal representative of the deceased.
(2) Where the decree is executed against such legal representative, he shall be liable only to the extent of the property of the deceased which has come to his hands and has not been duly disposed of; and, for the purpose of ascertaining such liability, the Court executing the decree may, on its own motion or on the application of the decree-holder, compel such legal representative to produce such accounts as it thinks fit.
52. Enforcement of decree against legal representative.
(1) Where a decree is passed against a party as the legal representative of a deceased person, and 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.
(2) Where no such property remains in the possession of the judgment debtor and he fails to satisfy the Court that he has duly applied such property of the deceased as is proved to have come into his possession, 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.
From reading of both these sections, it is clear that both these sections apply in two different situations-Section 50 applies only if the decree is passed during the lifetime of the original debtor and the property is proceeded in execution after his death. While Section 52 of the Code applies where the original debtor dies during the pendency of the suit and the names of the legal representatives are brought on record and ultimately decree is passed against them.
7. Thus, under Section 52, decree is passed against a person who is dead at the time of execution, while, Section 50 applies where the person dies during the pendency of the suit and decree is passed after his death against his heirs. Under Section 50, the burden to prove the fact is definitely on the decree holder who puts the decree in execution against the legal heirs. It is for him to show that the property in question has come to the hands of the legal heirs from the deceased. While Sub-section (2) of Section 52 clearly mentions that the decree may be executed against the judgment debtor to the extent of the property in respect of which he has failed to satisfy the Court that the property has come to his hands from the deceased. The words “failed to satisfy the Court” show that the burden to prove the said fact is on the judgment debtor and not on the decree holder. It is for the judgment-debtor to satisfy the Court that he has not received the property from the hands of the deceased and if he fails to satisfy, the Court can proceed with the execution.
8. In the present case, present petitioner was brought on record as a legal representative of the deceased Krishna Raj Singh. Her name was brought on record in place of her husband and therefore, she was the judgment debtor in the suit itself and hence as per Sub-section (2) of Section 52 of the Code, it was for her to satisfy the Court that she has not received the property attached by the Bank from her husband. But the petitioner has failed to adduce any evidence to that effect.
9. Considering these facts, I find that the Court below has rightly rejected the objections of the present petitioner.
10. Therefore, the petition is without any merit and is dismissed.