ORDER :

This Revision Petition has been filed to set aside the order dated 20.11.2020 in R.E.P.No.54 of 2018 in O.S.No.97 of 2003 pending on the file of the III Additional District Court Salem.

2. The 5th respondent/Judgment Debtor No.5 is the revision petitioner herein.

3. O.S.No.97 of 2003 had bee filed by the plaintiff V. Subramanian, who is the 1st respondent herein against three defendants namely, Krishnan, Shanmugam and L.S.P. Refined Oil Company represented by its Proprietor Krishnan seeking recovery of a sum of Rs.6,12,200/- together with interest and for costs.

4. The suit was contested by the 1st and 2nd defendants. The 3rd defendant remain ex-parte. A Judgment was passed on 15.03.2005 decreeing the suit. Thereafter, the plaintiff/decree holder filed R.E.P.No.54 of 2018. By that time, the 2nd defendant Shanmugam had died. Therefore, his legal representatives / sons were impleaded as 4th and 5th respondents / judgment debtors 4 & 5. They were Dr. Muralidharan and B.S. Selvakumar, the 4th respondent/judgment debtor. Dr. Muralidharan is the revision petitioner herein.

5. The said Execution Petition was filed by the plaintiff/decree holder under Order XXI Rule 11 of CPC seeking execution of decree by arrest of the 4th and 5th respondents therein namely, B.S. Selvakumar and Dr. Muralidharan.

6. A counter had been filed on behalf of the present revision petitioner, wherein, it was very specifically pointed out that under Section 50 of CPC the decree cannot be executed by arrest of the legal representatives of the deceased judgment debtor and the Execution Petition seeking an order of arrest is not maintainable.

7. Orders were passed in R.E.P.No.54 of 2018 on 20.11.2020, which order is questioned in the present Revision Petition.

8. By the said order, the learned III Additional District Judge Salem, stated during evidence objection had not been raised and there was property left by the deceased Shanmugam in the hands of both 4th and 5th respondents/judgment debtors. Thereafter, holding that they were bound to satisfy the decree, it was further held that “it is decided to order arrest of Respondents 4 and 5 to realize the balance amount due to petitioner/decree holder”.

9. Mr. R. Krishnan, learned counsel for the revision petitioner seriously questioned the legality of the said order, in view of Section 50 of CPC. Section 50 of CPC is as follows:-

“Section 50. Legal Representative:- (1) 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, of its own motion or on the application of the decree-holder, compel such legal representative to produce such accounts as it thinks fit.”

10. The provision of law is very clear. When a decree is executed against the legal representatives, the legal representatives shall be liable only to the extent of the property of the deceased which had come to their hands and had not been disposed of. The legal representatives cannot be arrested to satisfy the decree. The very filing of the said Execution Petition under Order XXI Rule 11 of CPC seeking to arrest the legal representatives of the judgment debtor itself is not maintainable.

11. Section 52 of CPC is also be relevant. Section 52 of CPC is as follows :

“Section 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 judgme