INTRODUCTION:
It is trite law that a personal action or claim extinguishes with the death of a person. This principle has been appropriately captured in the common law maxim – “action personalismoritur cum persona”, which is the Latin equivalent for “a personal right of action dies with the person”. The maxim, however, has limited application on cases, such as (i) a defamatory action, (ii) criminal proceedings in lieu of personal injury not amounting to murder, (iii) where the grant of any relief in a suit would be nugatory owing to the death of a party, etc. However, where a judgement debtor dies before fully satisfying a money payment decree, the decree holder can apply to the court that had passed the decree to get the decree executed against the legal representatives and/ or legal heirs of the deceased judgement debtor. Here, the above mentioned common law maxim has no application. In this paper, we will discuss the extent of liability of a legal heir in such a situation where the judgement debtor has expired before the execution of a money decree.
LIABILITY OF LEGAL REPRESENTATIVES AND/ OR HEIRS
Section 50(1) of the Code of Civil Procedure (“CPC”) provides remedy to a decree holder, who has obtained a decree for payment of money out of the property of a deceased judgement debtor. This remedy allows a decree to be executed against class I and class II heirs of the deceased judgement debtor, by making an application before the court that had passed the decree. Section 50(2) of the CPC endeavours to provide protection to the legal representatives of a deceased judgement debtor by stipulating that such legal representatives shall only be liable to the extent of the property that comes into their hands and not otherwise. Further, Rule 5 of Order 22 of the CPC provides that in case there is a question on whether a person is a legal representative of a deceased party or not (plaintiff or defendant as the case may be), it shall be determined by the Court. Further, Section 47(3) of the CPC, which relates to “Questions to be determined by the Court executing decree”, states that the question relating to whether a party is or is not a representative shall be determined by the Court executing the decree. A combined reading of the abovementioned provisions indicates that there should be an application of mind on the part of the Court before the legal representatives of the deceased party can be impleaded and the decree be enforced against them.
SOME IMPORTANT OBSERVATIONS BY THE COURT:
The Hon’ble Supreme Court in the case of Andhra Bank v. N. Srinivasan[1],referring to Salmond’s Jurisprudence,observed that the legal personality of the deceased judgement debtor (at whose behest the decree remains unsatisfied) survives his death and in that sense the liability in respect of the estate of such a deceased survives and outlives his natural personality. The Court further observed that the term “legal representative” is a wide term, which encompasses any person who in law intermeddles with or represents the estate of the deceased, however, the scope of liability of such a person, who is a legal representative of the deceased judgement debtor, is limited to the extent of the property that is actually held by him. In similar vein, in the case of Ambili Devi v. Kerala State Road Transport Corporation[2],whereby Ambili Devi was given compassionate employment upon the death of her husband, and the Respondent was attempting to attach her salary from such an appointment to secure the debt due from her deceased husband. The Kerala High Court interpreted Section 50 of CPC and held that a legal representative was only liable to the extent of the property secured by him/ her from the estate of the deceased. The Court thus did not allow attachment of her salary towards the debts due from her deceased husband. In the case of Jaladi Suguna (Deceased) Through LRs vs. Satya Sai Central Trust & Others[3], the Hon’ble Apex Court referred to the definition of “legal representative” contained in Section 2(11) of CPC, which states that a “legal representation” includes any person who interferes with the estate of the deceased and who in law represents the estate of the deceased. The Hon’ble Court further observed that when an application to bring on record the legal representatives of the deceased is made before the court, the fact that an application has been made does not ipso facto mean that the legal representatives are successfully impleaded in the suit. The question that a person is a legal representative or not, if disputed, has to be considered by the court and there should be application of mind by the court in order to ascertain the liability of the legal representatives for the purpose of impleadment. Similarly, in Pannalal and Another v. Mst Naraini, the deceased represented by Hari Prasad[4], the Hon’ble Supreme Court observed that in a case where a decree is passed against the sons as the legal representatives of the deceased pertaining to a debt arising out of Hindu Law, it is imperative that no liability be imputed on such legal representatives unless an opportunity to be heard is given to such persons to put up a case that they are not liable for any such debts. Also, in the case of Prabhakara Adiga v. Gowri and Others[5], the Hon’ble Supreme Court analysed Section 50 of the CPC and observed that it is not limited to any particular type of decree and it even includes a decree for injunction, which can be enforced against the legal representative of the deceased.
CONCLUDING THOUGHTS:
It is clear from the analysis of the Supreme Court and the various High Courts that the proposed legal representatives sought to be impleaded in the execution of a decree against the deceased judgement debtor ought not be simpliciter impleaded by the court unless such legal representatives have actually received such property of the deceased judgement debtor through inheritance or otherwise and such property can be duly applied towards extinguishing the liability of the deceased judgement debtor provided that the property has not been duly disposed of. The question of determining the liability of such legal representatives, if disputed, must be considered and adjudicated upon by the court, to avoid any injustice and harm to the proposed legal representatives sought to be impleaded. It is trite law that any vexatious/ frivolous proceeding/ litigation must be avoided at all costs since it amounts to abuse of the process of law, which is grossly violative of the principle of rule of law.
For further information, please contact:
Vikash Kumar Jha, Cyril Amarchand Mangaldas
vikashkumar.jha@cyrilshroff.com
[1] AIR 1962 SC 232
[2] 2017 SCC OnLine Ker 8951
[3] (2008) 8 SCC 521
[4] AIR 1952 SC 170
[5] (2017) 4 SCC 97
