execution of decree against minor

good like to know .

@ Author

1. Order 21 - Rule 90, Civil Procedure Code, 1908, Order 32 - Rule 3 - setting aside sale - minor not duly respresented either in the suit or in the execution proceedings - Such decree is a nullity & void - Consequently the sale of property wherein the minor has a share is also void. 


2. In your query it is not lcear if the minor is duly represented either in the suit or in the execution proceedings even so the first para is a valid answer.

sir,

actually the suit was against father of minor. his father was also declared exparte.

now the execution suit has been filed against LRs of the deceased/JD.

pls examine and guide .

thanking u for prompt reply.

ravinder kaushik

@ Author


Ok, if the case in hand is as further adduced then in our opinion;

1.     S. 52(1) C. P. C. provides that when a decree is against the legal representatives of a dead person and is one for recovery of money out of the properties of the deceased, it may be executed by attachment, and sale of any such property. Then comes S. 53 C. P. C. which lays down that for purposes of S. 50 and 52 C. P. C. property in the hands of a son or other descendants which is liable under Hindu law for payment of the debt of a deceased ancestor in respect of which a decree has been passed, shall be deemed to be property of the deceased which has come to the hands of the son or other descendant as his legal representative'. It is to be noted that before the C. P. C. of 1908 came into force, there was a conflict of opinion as to whether the liability of Hindu son to pay his father's debt could or could not be enforced in execution proceedings. 

2.     Under the Hindu law an undivided son or other descendant who succeeds to the joint property on the death of his father or other ancestor does so by right of survivorship and not as heir. In the old Code the term 'legal representative' was not defined and the question arose as to whether the son could be regarded as the legal representative of his father in regard to properties which he got by survivorship on the father's death and whether a decree against the father could be enforced in execution against the son or a separate suit would have to be instituted for that purpose. It was held by the Madras and the Allahabad High Courts that the liability could not be enforced in execution proceedings, whereas the Calcutta and Bombay High Courts held otherwise. S. 53 C. P. C. in a sense gives legislative sanction to the view taken by the Calcutta and the Bombay High Courts, one reason for introducing this section may have been or undoubtedly was to enable the decree - holder to proceed in execution against the property that vested in the - son by survivorship after the death of the father against whom the decree was obtained; but the section has been worded in such a comprehensive manner that it is wide enough to include all cases where a son is in possession of ancestral property which is liable under the Hindu law to pay the debts of his father; and either that has been made against the son as legal representative of the father or the original decree being against the father, it is put into execution against the son as his legal representative under S. 50 C. P. C. In both these sets of circumstances the son is deemed by a fiction of law to be the legal representative of the deceased debtor in respect of the property which is in his hands and which is liable under the Hindu law to pay the debts of the father, although as a matter of fact he obtained the property not as a legal representative of the father at all.

3.     Hence S. 53 C. P. C. being a rule of procedure does not and cannot alter any principle of substantive law and it does not enlarge or curtail in any manner the obligation which exists under Hindu law regarding the liability of the son to pay his father's debts. It however lays down the procedure to be followed in cases coming under this section and if the son is bound under Hindu law to pay the father's debts from any ancestral property in his hands -- and the section is not limited to property obtained by survivorship alone -- the remedy of the decree-holder against such property lies in the execution proceedings and not by way of separate suit. The son would certainly be at liberty to show that the property in his hands is for certain reasons not liable to pay the debts of his father and all these questions would have to be decided by the executing Court under S. 47 C. P. C. I feel these seems to be the true scope and the meaning of S. 53 C. P. C.


Re. AIR 1935 Pat. 275 (Q) it is a full Bench case
Held: The majority decision in re. case upon which stress is laid by Mr. Kunzru overlooks the point that S. 47 C. P. C. could have no application when the decree against the father is sought to be executed against the sons during his lifetime and consequently the liability of the latter must have to be established in an independent proceeding. In cases coming under S. 50 and 52 C. P. C. on the other hand the decree would be capable of being executed against the sons as the legal representatives of their father and it would only be a matter of procedure whether or not these questions should be allowed to be raised by the sons in execution proceedings under S. 47 C. P. C.


PS.: I may stand for correction by core subject experts.