The main legal point established in the judgment is that a decree should be passed against the estate of the deceased and not against the legal representative in their individual capacity, as per the provisions of Order 22 Rule 4 and Section 50 of the CPC.

V. NEELADRI RAO, J.

( 1 ) 1. This revision petition was filed by Judgment debtor No. 7 in the decree passed in S A No. 16/83 on the file of the District Judge Warangal.

( 2 ) R-1 herein riled a suit for recovery of money from D-1 who has executed the pronote and from D-2 who stood as surety. During the pendency of the suit, D-2 died and D-3 to D-11 were brought on record as his L Rs. The suit was dismissed. R-1 herein preferred A S No, 16/83. That appeal was allowed and the suit was decreed on 20-10-84. The operative portion of the decree is as under. "that the respondent-defendants do pay Rs. 6,400/- to the appellant-plaintiff. That the respondents-defendants do pay to the appellant-plaintiff a sum of rs. 1172-40 Ps towards costs of suit and a sum of Rs. 660-70 Ps towards costs of the appeal. "thus, the decree reads that there was a personal decree even against D-3 to D-11 who are R-3 to R-11 in the 1st appeal, and who are the judgment-debtor Nos. 3 to 11.

( 3 ) THE Plaintiff-decree holder filed ep No. 91/89 for arrest of this revision petitioner by contending that even though he had means to discharge the decree debt he was evading. The executing Court ordered arrest. This revision petition was filed against the raid order of arrest.

( 4 ) UNDER Order 22 Rule 4 (1) c P C if one or more defendants die and the right to sue does not survive against the surviving defendant or defendants the Court on an application made in that behalf shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit. Order 22 Rule 4 (2) states that any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant. Thus the legal representative who is brought on record represents the estate of the deceased and it is only the estate of the deceased that is bound and the legal representative in his individual capacity is not bound by the decree that is passed in the suit after the death of the deceased defendant. So in such a case if a decree is going to be passed the decree should be passed against the estate of the deceased and not against the legal representative in this individual capacity.

( 5 ) IF the Judgment-debt or dies after the decree is passed and before executionof the decree Section 50 (1) cpc enables the decree-holder to apply to the Court which passed the decree to execute the same against the legal representative of the deceased. Section 50 (2) C P C makes it specific that 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 duty disposed of. As already observed, even in a decree that is passed against the legal representative, the decree will be only to be extent of the property of the deceased in the hands of the legal representative.

( 6 ) BUT unfortunately instead of drafting the decree in A S No. 16/83 as a decree against the estate of the deceased in the hands of the legal representative it was drafted as if it is a decree against the L Rs. of deceased D-2 in their individual capacity. As the drafting of the said decree is defective, it is necessary for the revision petitioner to move the first Appellate Court for amendment of the decree.

( 7 ) IN view of the above the impugned order has to be set aside and the revision petitioner has to move the first Appellate Court for the amendment of the decree. The revision petition is ordered accordingly. No costs.

Click Here to Read the rest of this document