Raghu Mandala Kasibabu Alias Kasibabu Naidu Vs. State Bank of India and ors. - Court Judgment

Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - as the said debtor failed to repay the loan opp.orderpradipta ray, j.1. these two civil revision cases are against the same order and accordingly these two cases have been heard together and are being disposed of by this judgment.2. r. yenku naidu, the predcccssor-in-inter-est of the petitioner and opp. parties 2 to 5 in civil revision no. 194/96 took loan from the state bank of india for purchasing a tractor or march 7, 1984 by mortgaging sands appertaining to khata nos. 21 and 28 measuring 9.64 acres and 13.16 acres respectively in village kampo-malligam in rayagadatahasil. as the said debtor failed to repay the loan opp. parly no. 1, slate bank of india instituted civil suit being title suit no. 10 of 1987 against him. on july 30, 1998 the said suit was decreed in preliminary form for rs. 1,25,848.30 p. with interest and costs. a final decree was passed on october 22, 1989. opp. party no. 1, bank, put the decree into execution in s. p. no. 3/90. during pendency of the said execution case the borrower r. yenku naidu died leaving the present petitioner and opp. parties 2 to 5 as his heirs and legal representatives. the decree-holder-bank got those successors impleadcd in the execution case and proceeded against them in execution. the said successors including the present petitioner filed an objection under section 47, civil procedure code challenging the executability of the decree againsl them. in the objection it was alleged that r. yenku naidu during his lifetime indulged in drinking, gambling and womanising and was wasting the family properties. to prevent such waste of family properties the successors filed a partition suit being title suit no. 11/80 and got the family properties partitioned and the suit properties were allotted in their favour on april 21, 1981. according to the said objectors r. yenku naidu had no subsisting interest in the mortgaged properties on the date of mortgage and as such he could not have made those properties liable for loan obtained by him. objectors have further stated that when the loan was transacted r. yenku naidu had three minor sons and he had no authority to mortgage the minors' interest in the property without permission of the court. according to the objectors mortgage of minors' interest without permission from court was invalid under section 8 of the hindu minority and guardianship act and was not enforceable. the objectors have also raised objection about the rate of interest charged by the bank as usurious. their last plea was that at least the properly inherited by the widow and the daughter could not be proceeded against in execution of the decree obtained against yenku naidu in view of section 53 of the civil procedure code.3. by the impugned judgment and order the executing court rejected the objection of the sons, upheld the objection of the widow and the daughter and passed the following order :'the misc. case is allowed in part on contest againsl the o.p., but in the circumstances without cost. the interest of petitioners 1 and 5 to the extent of l/20th each in the mortgaged property be exempted from being proceeded against or sold in execution of decree and no other relief is granted to the petitioner.'against the said order the present petitioner has filed civil revision no. 194/96 while the state bank of india has filed civil revision no. 201 of 1996.4. the court below has disbelieved the story of partition and has held that the debtor took the loan for the benefit of the family and not for any immoral purpose. it has also accepted that the mortgaged properties are the ancestral properties of yenku naidu. the court below, however, has taken the view that the share inherited by the widow and daughter to the extent of l/20th each would not be liable to be proceeded against in execution because of section 53 of the civil procedure code. in support of its view, the court below relied upon a decision, reported in (1979) 47 clt 513, sudhamani dei @ sundarmani mohanty v. sadananda mohanty.5. in sudhamani's case (supra) this court took the view that the widow is not a descendant but gels her right in the husband's property as a statutory heir and as such widow's share in the husband's properly under the provision of hindu succession act would not be available for execution of the decrees against the deceased-husband and share is immuncd under section 53 of the civil procedure code. with due respect the said view taken in sudhamani's case appears to be confusing and contrary to the decision of the supreme court in pannulal v. ml. naraini, reported in air 1952 sc 170. in pannalal's case the supreme court has observed (at p. 173 of air) :--'it is argued on behalf of the respondent and ihink rightly, that as the decree fulfills the conditions of section 52(1) of the civil procedure code it would attract all the incidents which attach by law to a decree of that character. consequently the decree-holder would be entitled to call in aid the provision of section 53 of the code; and if a property in the hands of the sons, other than what they received by inheritance from their father, is liable under the hindu law to pay the father's debts, such property could be reached by the decree-holder in execution of the decree by virtue of the provision of section 53 of the c.p.c.'it is clear from the said observations that section 53 of the civil procedure code does not apply to or govern a case of persons who inherit the property by way of succession. liability of a successor as a legal representative of a deceased judgment-debtor is governed by section 50 of the civil procedure code and section 53 thereof is not attracted to such case. section 53 of the civil procedure code come into play and enables the decree-holder to proceed also against the properties of the co-parcener sons and other descendants if they are otherwise liable under the hindu law for payment of debt of the father. section 53 of the civil procedure code does not in any way restrict operation of section 50 or 52 of the civil procedure code, but it confers an additional right on the decree-holder.6. the said decision in dudhamani' s case has been subsequently considered and the position of law has been explained by this court in miss krishna bose v. rajendra prasad bose, reported in (1993) 2 orissa lr 309. in miss krishna bose's case it has been held that section 53 of the civil procedure code has actually extended the scope of sections 50 and 52 of the civil procedure code to bring within its coverage even the share of the co-parcener sons and other descendants for the purpose of execution of the decree obtained against the father. it has been explained therein :--'however, widow and daughter not being descendant are not liable under section 53, c.p.c. their liability to discharge the decree remains confined to provisions in section 50 or 52, c.p.c. as the case may be.'7. scope of provisions of section 53, c.p.c. has been correctly construed in miss. krishna bose's case. where a judgment-debtor dies before satisfaction of the decree, the decree-holder may proceed against the legal representatives of the deceased, but the liability of the legal representative is limited only to the extent of the properties of the deceased which have come to the hands of such legal representatives upon predecessor's death. section 53 has enlarged the scope of section 50 to make the properties in the hands of sons as co-parceners and their lineal descendant; also liable for satisfaction of the decree against the judgment-debtor-father. a widow or a daughter cannot be co-parceners and as such section 53 has not included them within its ambit. a widow or a daughter is not liable under section 53, c.p.c., but section 53 has not absolved the liability of a widow or a daughter under section 50, c.p.c., who has inherited any property of the deceased judgment-debtor as his successor or legal representative upon his death.8. in the present case on the death of yenku naidu his share in the co-parcenary has been inherited by his legal representatives including the widow and the daughter under the provisions of the hindu succession act and those properties remain liable under section 50, c.p.c., section 53 of the c.p.c. does not apply to widow and the daughter and does not exclude such liability to satisfy the decree passed against the judgment-debtor. the court below has committed error in holding that the interests of the widow and the daughter are exempted from being proceeded against or sold in execution of the decree. accordingly, that part of the order is liable to be set aside.9. the court below has found that there was no valid partition. even if there was partition under the hindu law, the sons have a pious obligation to discharge the debt incurred by the father, if the same was not incurred for any immoral purpose. the court below has held that the loan was not for any illegal or immoral purpose. thus, share of sons cannot be exempted. in the circumstances, this court does not find any merit in. civil revision no. 194 of 1996.10. for the foregoing reasons, civil revision no. 194 of 1996 is dismissed and civil revision no. 201 of 1996 is allowed. the part of the order by which the shares of the widow and the daughter have been exempted from execution is set aside. no costs.lower court records be sent down immediately.

Judgment:
ORDER

Pradipta Ray, J.

1. These two civil revision cases are against the same order and accordingly these two cases have been heard together and are being disposed of by this judgment.

2. R. Yenku Naidu, the predcccssor-in-inter-est of the petitioner and opp. parties 2 to 5 in Civil Revision No. 194/96 took loan from the State Bank of India for purchasing a tractor or March 7, 1984 by Mortgaging Sands appertaining to Khata Nos. 21 and 28 measuring 9.64 acres and 13.16 acres respectively in village Kampo-Malligam in RayagadaTahasil. As the said debtor failed to repay the loan opp. parly No. 1, Slate Bank of India instituted civil suit being Title Suit No. 10 of 1987 against him. On July 30, 1998 the said suit was decreed in preliminary form for Rs. 1,25,848.30 P. with interest and costs. A final decree was passed on October 22, 1989. Opp. party No. 1, Bank, put the decree into execution in S. P. No. 3/90. During pendency of the said execution case the borrower R. Yenku Naidu died leaving the present petitioner and opp. parties 2 to 5 as his heirs and legal representatives. The decree-holder-Bank got those successors impleadcd in the execution case and proceeded against them in execution. The said successors including the present petitioner filed an objection under Section 47, Civil Procedure Code challenging the executability of the decree againsl them. In the objection it was alleged that R. Yenku Naidu during his lifetime indulged in drinking, gambling and womanising and was wasting the family properties. To prevent such waste of family properties the successors filed a partition suit being Title Suit No. 11/80 and got the family properties partitioned and the suit properties were allotted in their favour on April 21, 1981. According to the said objectors R. Yenku Naidu had no subsisting interest in the mortgaged properties on the date of mortgage and as such he could not have made those properties liable for loan obtained by him. Objectors have further stated that when the loan was transacted R. Yenku Naidu had three minor sons and he had no authority to mortgage the minors' interest in the property without permission of the Court. According to the objectors mortgage of minors' interest without permission from Court was invalid under Section 8 of the Hindu Minority and Guardianship Act and was not enforceable. The objectors have also raised objection about the rate of interest charged by the Bank as usurious. Their last plea was that at least the properly inherited by the widow and the daughter could not be proceeded against in execution of the decree obtained against Yenku Naidu in view of Section 53 of the Civil Procedure Code.

3. By the impugned judgment and order the executing Court rejected the objection of the sons, upheld the objection of the widow and the daughter and passed the following order :

'The Misc. Case is allowed in part on contest againsl the O.P., but in the circumstances without cost. The interest of petitioners 1 and 5 to the extent of l/20th each in the mortgaged property be exempted from being proceeded against or sold in execution of decree and no other relief is granted to the petitioner.'

Against the said order the present petitioner has filed Civil Revision No. 194/96 while the State Bank of India has filed Civil Revision No. 201 of 1996.

4. The Court below has disbelieved the story of partition and has held that the debtor took the loan for the benefit of the family and not for any immoral purpose. It has also accepted that the mortgaged properties are the ancestral properties of Yenku Naidu. The Court below, however, has taken the view that the share inherited by the widow and daughter to the extent of l/20th each would not be liable to be proceeded against in execution because of Section 53 of the Civil Procedure Code. In support of its view, the Court below relied upon a decision, reported in (1979) 47 CLT 513, Sudhamani Dei @ Sundarmani Mohanty v. Sadananda Mohanty.

5. In Sudhamani's case (supra) this Court took the view that the widow is not a descendant but gels her right in the husband's property as a statutory heir and as such widow's share in the husband's properly under the provision of Hindu Succession Act would not be available for execution of the decrees against the deceased-husband and share is immuncd under Section 53 of the Civil Procedure Code. With due respect the said view taken in Sudhamani's case appears to be confusing and contrary to the decision of the Supreme Court in Pannulal v. Ml. Naraini, reported in AIR 1952 SC 170. In Pannalal's case the Supreme Court has observed (at p. 173 of AIR) :--

'It is argued on behalf of The respondent and ihink rightly, that as the decree fulfills the conditions of Section 52(1) of the Civil Procedure Code it would attract all the incidents which attach by law to a decree of that character. Consequently the decree-holder would be entitled to call in aid the provision of Section 53 of the Code; and if a property in the hands of the sons, other than what they received by inheritance from their father, is liable under the Hindu Law to pay the father's debts, such property could be reached by the decree-holder in execution of the decree by virtue of the provision of Section 53 of the C.P.C.'

It is clear from the said observations that Section 53 of the Civil Procedure Code does not apply to or govern a case of persons who inherit the property by way of succession. Liability of a successor as a legal representative of a deceased judgment-debtor is governed by Section 50 of the Civil Procedure Code and Section 53 thereof is not attracted to such case. Section 53 of the Civil Procedure Code come into play and enables the decree-holder to proceed also against the properties of the co-parcener sons and other descendants if they are otherwise liable under the Hindu Law for payment of debt of the father. Section 53 of the Civil Procedure Code does not in any way restrict operation of Section 50 or 52 of the Civil Procedure Code, but it confers an additional right on the decree-holder.

6. The said decision in Dudhamani' s case has been subsequently considered and the position of law has been explained by this Court in Miss Krishna Bose v. Rajendra Prasad Bose, reported in (1993) 2 Orissa LR 309. In Miss Krishna Bose's case it has been held that Section 53 of the Civil Procedure Code has actually extended the scope of Sections 50 and 52 of the Civil Procedure Code to bring within its coverage even the share of the co-parcener sons and other descendants for the purpose of execution of the decree obtained against the father. It has been explained therein :--

'However, widow and daughter not being descendant are not liable under Section 53, C.P.C. Their liability to discharge the decree remains confined to provisions in Section 50 or 52, C.P.C. as the case may be.'

7. Scope of provisions of Section 53, C.P.C. has been correctly construed in Miss. Krishna Bose's case. Where a judgment-debtor dies before satisfaction of the decree, the decree-holder may proceed against the legal representatives of the deceased, but the liability of the legal representative is limited only to the extent of the properties of the deceased which have come to the hands of such legal representatives upon predecessor's death. Section 53 has enlarged the scope of Section 50 to make the properties in the hands of sons as co-parceners and their lineal descendant; also liable for satisfaction of the decree against the judgment-debtor-father. A widow or a daughter cannot be co-parceners and as such Section 53 has not included them within its ambit. A widow or a daughter is not liable under Section 53, C.P.C., but Section 53 has not absolved the liability of a widow or a daughter under Section 50, C.P.C., who has inherited any property of the deceased judgment-debtor as his successor or legal representative upon his death.

8. In the present case on the death of Yenku Naidu his share in the co-parcenary has been inherited by his legal representatives including the widow and the daughter under the provisions of the Hindu Succession Act and those properties remain liable under Section 50, C.P.C., Section 53 of the C.P.C. does not apply to widow and the daughter and does not exclude such liability to satisfy the decree passed against the judgment-debtor. The Court below has committed error in holding that the interests of the widow and the daughter are exempted from being proceeded against or sold in execution of the decree. Accordingly, that part of the order is liable to be set aside.

9. The Court below has found that there was no valid partition. Even if there was partition under the Hindu Law, the sons have a pious obligation to discharge the debt incurred by the father, if the same was not incurred for any immoral purpose. The Court below has held that the loan was not for any illegal or immoral purpose. Thus, share of sons cannot be exempted. In the circumstances, this Court does not find any merit in. Civil Revision No. 194 of 1996.

10. For the foregoing reasons, Civil Revision No. 194 of 1996 is dismissed and Civil Revision No. 201 of 1996 is allowed. The part of the order by which the shares of the widow and the daughter have been exempted from execution is set aside. No costs.

Lower Court Records be sent down immediately.