D. Krishna Sachi Vs. Y. Vijay Lakshmamma and anr. - Court Judgment

Excerpt:
commercial - money-decree - sections 52 (1) and 52 (2) and order 22 rule 4 of code of civil procedure, 1908 - petitioner obtained money-decree - execution for realization of decree-debt against estate of deceased sought by judgment-debtor - high court observed that decree itself has been passed for recovery of money against estate of deceased principal-debtor in hands of judgment-debtors - need to bring legal representatives of other judgment-debtor on record is obviated reason being that any one of them is representing estate of principal debtor - following procedure under section 52 (2) is mandatory where decree-holder intends to proceed against estate of deceased judgment-debtor - held, no need to bring legal representatives of fourth judgment-debtor on record. - maximssections 2(xv) & 3(1) & (3): [v.v.s. rao, n.v. ramana & p.s. narayana, jj] ghee as a live stock product held, [per v.v.s. rao & n.v. ramana, jj - majority] since ages, milk is preserved by souring with aid of lactic cultures. the first of such resultant products developed is curd or yogurt (dahi) obtained by fermenting milk. dahi when subjected to churning yields butter (makkhan) and buttermilk as by product. the shelf life of dahi is two days whereas that of butter is a week. by simmering unsalted butter in a pot until all water is boiled, ghee is obtained which has shelf life of more than a year in controlled conditions. ghee at least as of now is most synthesized, ghee is a natural product derived ultimately from milk. so to say, milk is converted to dahi, then butter. scientifically or common sense point of view, even though ghee is not directly obtained from milk (which is certainly a product of cow/buffalo), it is certainly a product of a product of livestock i.e., cow or buffalo. it would be rather illogical or irrational to say that ghee is not a milk/dairy product or to say that it is not a product of livestock. section 2(x) and 2(iv) of the act used the plural products of livestock. the legislative intention is very clear that not only a product of livestock like milk (when notified by government), butter etc., are products of livestock but even derivative items (derived from a product of livestock) are intended to be product of livestock for the purpose of the act. thus the term ghee is to be interpreted on the basis of expression products of livestock as defined in section 2(xv) of the act. whatever products are declared as such by the government by notification, they become products of livestock for purpose of the act. consequently it was held that ghee is the product of livestock and by reason of power conferred under section 3(1) read with section 3(3) of the act on them it is competent for the government to declare ghee as product of livestock for the purpose of regulating its purchase and sale, in any notified market area. [per p.s. narayana, j,(dissenting)]if livestock or agricultural produce and the categories thereof had been specified in the statute itself by appending in the schedule or otherwise, that would stand on a different footing from the present provisions of the act which contemplate the issuance of notifications in accordance with the procedure ordained by the provisions specified supra. in view of the clear definition of the livestock and products of livestock, the ghee being derivative of butter or cream, if the language employed in definition to be taken as they stand, the only conclusion would be is that the ghee would not fall within ambit of the definitions aforesaid. sections 4 & 3: [v.v.s. rao, n.v. ramana & p.s. narayana, jj] declaration of notified area held, it is only under section 3 that government are required to publish draft notification inviting objections and section 3(3) mandates to consider objections and suggestions before issuing declaration order. it is very conspicuous that section 4 does not contemplate any draft notification inviting objections and suggestions before either constituting market committee, establishing notified market area or declaring notified market area for the purpose of levy of market fees. thus, except ordaining government to issue preliminary/draft notification inviting objections at the time of issuing declaration order under section 3(3) of the act nowhere much less under section 4 contemplates issuing a notification inviting objections. when the legislature has chosen to exclude principles of natural justice, the court cannot introduce rule of audi alteram partem and render statutory provisions unworkable. in such a case, maxim, expressum facit cessare tacitum (when there is express mention of certain things, then anything not mentioned is excluded) would apply. section 7: [v.v.s. rao, n.v. ramana & p.s. narayana, jj] levy of market fee element of quid pro quo - held, levying fees and tax are two forms of exercise of sttaes taxing power. there is no quid pro quo between tax payer and public authority as tax is a part of common burden. it is also well settled that fee is charge for special service or a benefit given to a class of individual fee payers and fee collected need not have correlation with actual service in exactitude but if it is shown that substantial portion of the fee is expended or the purpose for which it is levied, it would be justified. expressum facit cessare tacitum sections 4 & 3: [v.v.s. rao, n.v. ramana & p.s. narayana, jj] meaning when there is express mention of certain things, then anything not mentioned is excluded. - 2. section 50(1) of the code postulates that 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 decreed. 52(2) of the code posits that 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 maybe executed against she 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. (b) he/she/they failed to satisfy the court that he/she/they has/ have applied such property to discharge the de.order1. the petitioner is the decree -holder. she obtained a money decree in o.s. no. 71 of 1979 dt. 5,ept. 6,1979 from the high court of madras. before decree, admittedly there was an attachment before judgment of the schedule mentioned properties i.e.. the state of the decree -debtor y. c. reddy sought to be executed against and the attachment was made absolute. after the decree was passed, it was treated for execution and the cl. (1) of the decree postulates the recovery of decretal amount of rs.1,65,500/- and interest at 10% from the state of the deceased debtor, y. c. reddy in the hands of the first defendant, v. madhava rao and defendants 3 and 4 who are de facto possessors of the estate of y. c. reddy. as a result, the petitioner filed e. p. no. 26 of 1984 in the court of v additional judge, city civil court, hyderabad. pending execution, the fourth judgment-debtor, the mother of the deceased v. c. reddy died on may, 5, 1984 and that fact was intimated by memo filed by her counsel in that regard. the court below directed the petitioner to bring the legal representatives of the fourth respondent- judgment-debtor relying on s. 52(2) of the code of civil procedure. 1', for short 'the code' and a decision of the calcutta high court in smt. shanti devi v. khandubala dasi, : air1961cal336 (fb). assailing the legality of the order, the civil revision petition is filed. 2. section 50(1) of the code postulates that 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 decreed. s. 52(1) of the code postulates that 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. s. 52(2) of the code posits that 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 maybe executed against she 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. 3. it is thus clear that s. 50(1) of the code would apply only where a decree is passed against the judgment-debtor and if be/she dies after the decree or pending execution and the decree-holder intends to proceed against the estate of the deceased judgment- debtor, it is mandatory that the legal representatives of that deceased judgment- debtor shall be brought on record. equally, in a case covered by s. 52(2) where the decree is sought to be executed against the judgment- debtor/judgment-debtor repre-sent4ng the estate of the principal debtor. it shall be proved that (a) the judgment-debtor/ judgment-debtors is/are in possession of the estate of the principal-debtor; (b) he/she/they failed to satisfy the court that he/she/they has/ have applied such property to discharge the de.,., and (c) no such property of the deceased principal debtor remained in his/her/their possession. in such a situation. on the demise of the judgment- debtor, his/her legal representatives must be brought on record by the court that passed the decree before proceeding with execution against the estate of the deceased judgment-debtor. but in a case when the decree itself has been passed for recovery of the money against the estate of the deceased principal-debtor in the hands of the judgment- debtor/judgment-debtors, the need to bring the legal representatives of the other judgment-debtor or judgment-debtors on record, is obviated, the reason being that any one of them is representing the estate of the principal debtor. but in a case where the decree-holder intends to proceed against the estate of the deceased/judgment- debtor/judgment- debtors. then the need to follow the procedure under s. 52(2) is mandatory. 4. in this case, what is sought to be proceeded with in execution is for realisation of the decree-debt against the estate of the deceased principal debtor which was subject of attachment before judgment and there are three judgment-debtors now on record. therefore. by operation of sub-sec.(1) of 5. 52, the remaining judgment-debtors 1 and 3 represent the estate of the principal debtor, y. c. reddy. his mother, the 4th judgment- debtor being one of the judgment-debtors. the need to bring her legal representatives on record is not necessary. in case the petitioner- decree-holder is unable to recover the decree- debt from the estate of the deceased y. c. reddy and if he proves that the estate of the principal debtor y. c. reddy remained in possession of his mother-4th judgment-debtor and that she did not apply the said property for discharge of the decree-debt, in that eventuality, the petitioner decree-holder has to bring the legal representatives of the fourth judgment-debtor viz., the mother of the deceased y. c. reddy on record and then proceed against the legal representatives of the deceased 4th judgment-debtor. thus, it must be held that there is no need to bring the legal representatives of the 4th judgment- debtor on record. the decision in santi devi's case : air1961cal336 (supra) does not apply to the facts in this case. in that case. the judgment-debtor died during the execution. therefore. to proceed against the estate of the judgment-debtor, it was held that the legal representatives are to be brought on record tinder 0. 22. r. 4 of the code. therefore, i hold that the court below committed error of jurisdiction. the c.r.p. is accordingly allowed, the order of the court below is set aside. there will be no order as to costs. 5. petition allowed.

Judgment:
ORDER

1. The petitioner is the decree -holder. She obtained a money decree in O.S. No. 71 of 1979 dt. 5,ept. 6,1979 from the High Court of Madras. Before decree, admittedly there was an attachment before judgment of the schedule mentioned properties i.e.. the state of the decree -debtor Y. C. Reddy sought to be executed against and the attachment was made absolute. After the decree was passed, it was treated for execution and the Cl. (1) of the decree Postulates the recovery of decretal amount of Rs.1,65,500/- and interest at 10% from the state of the deceased debtor, Y. C. Reddy in the hands of the first defendant, V. Madhava Rao and defendants 3 and 4 who are de facto Possessors of the estate of Y. C. Reddy. As a result, the petitioner filed E. P. No. 26 of 1984 in the Court of V Additional Judge, City Civil Court, Hyderabad. Pending execution, the fourth judgment-debtor, the mother of the deceased V. C. Reddy died on May, 5, 1984 and that fact was intimated by memo filed by her counsel in that regard. The Court below directed the petitioner to bring the legal representatives of the fourth respondent- judgment-debtor relying on S. 52(2) of the Code of Civil Procedure. 1', for short 'the Code' and a decision of the Calcutta High Court in Smt. Shanti Devi v. Khandubala Dasi, : AIR1961Cal336 (FB). Assailing the legality of the order, the Civil Revision Petition is filed.

2. Section 50(1) of the Code postulates that 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 decreed. S. 52(1) of the Code postulates that 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. S. 52(2) of the Code posits that 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 maybe executed against she 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.

3. It is thus clear that S. 50(1) of the Code would apply only where a decree is passed against the judgment-debtor and if be/she dies after the decree or pending execution and the decree-holder intends to proceed against the estate of the deceased judgment- debtor, it is mandatory that the legal representatives of that deceased judgment- debtor shall be brought on record. Equally, in a case covered by S. 52(2) where the decree is sought to be executed against the judgment- debtor/judgment-debtor repre-sent4ng the estate of the principal debtor. it shall be proved that (a) the judgment-debtor/ judgment-debtors is/are in possession of the estate of the principal-debtor; (b) he/she/they failed to satisfy the Court that he/she/they has/ have applied such property to discharge the de.,., and (c) no such property of the deceased principal debtor remained in his/her/their possession. In such a situation. on the demise of the judgment- debtor, his/her legal representatives must be brought on record by the Court that passed the decree before proceeding with execution against the estate of the deceased judgment-debtor. But in a case when the decree itself has been passed for recovery of the money against the estate of the deceased principal-debtor in the hands of the judgment- debtor/judgment-debtors, the need to bring the legal representatives of the other judgment-debtor or judgment-debtors on record, is obviated, the reason being that any one of them is representing the estate of the principal debtor. But in a case where the decree-holder intends to proceed against the estate of the deceased/judgment- debtor/judgment- debtors. then the need to follow the procedure under S. 52(2) is mandatory.

4. In this case, what is sought to be proceeded with in execution is for realisation of the decree-debt against the estate of the deceased principal debtor which was subject of attachment before judgment and there are three judgment-debtors now on record. Therefore. by operation of sub-sec.(1) of 5. 52, the remaining judgment-debtors 1 and 3 represent the estate of the principal debtor, Y. C. Reddy. His mother, the 4th judgment- debtor being one of the judgment-debtors. the need to bring her legal representatives on record is not necessary. In case the petitioner- decree-holder is unable to recover the decree- debt from the estate of the deceased Y. C. Reddy and if he proves that the estate of the principal debtor Y. C. Reddy remained in possession of his mother-4th judgment-debtor and that she did not apply the said property for discharge of the decree-debt, in that eventuality, the petitioner decree-holder has to bring the legal representatives of the fourth judgment-debtor viz., the mother of the deceased Y. C. Reddy on record and then proceed against the legal representatives of the deceased 4th judgment-debtor. Thus, it must be held that there is no need to bring the legal representatives of the 4th judgment- debtor on record. The decision in Santi Devi's case : AIR1961Cal336 (supra) does not apply to the facts in this case. In that case. the judgment-debtor died during the execution. Therefore. to proceed against the estate of the judgment-debtor, it was held that the legal representatives are to be brought on record tinder 0. 22. R. 4 of the Code. Therefore, I hold that the Court below committed error of jurisdiction. The C.R.P. is accordingly allowed, the order of the Court below is set aside. There will be no order as to costs.

5. Petition allowed.