SMT. RATNA @ RATNAVATI versus SYNDICATE BANK AND ORS.

Citation: [1994] SUPP. 6 S.C.R. 73 · Decided: 24-11-1994 · Supreme Court of India · Bench: K. RAMASWAMY, N. VENKATACHALA · Disposal: Dismissed

Judgment (excerpt)

: 
... 
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SMT. RA TNA@ RA TNA VA TI 
v. 
SYNDICATE BANK AND ORS. 
NOVEMBER 24, 1994 
[K. RAMASWAMY AND N. VENKA TACHALA, JJ.J 
Code of Civil Procedure, 1908/Limitation Act, 1963-Se.:tions 52, 151, 
Order Rule JO, Order 22 Rules 1 and 2/Articles 120, 121-Suit-Bringing 
A 
B 
on record the legal representatives of deceased party-Held; No need to 
move an application within the period of limitation as provided under C 
Articles 120 and 121 of the Limitation Act. 
The father of the petitioner was the 2nd defendant in a suit filed 
under Order 34 Rule 4 for the recovery of the money due under a 
hypothica. A preliminary decree was passed in the suit on the basis of a 
joint memo filed by the parties. Thereafter the second defendant/surety D 
died. The plaintiff filed an application for final decree. He also filed an 
application to bring the petitioner as legal representative of the 
deceased second respondent. It was opposed on the ground that such 
application was barred by limitation and the preliminary decree itself 
had abated after the expiry of 90 days from the date of death ·Of 
defendant 2. An objection was also raised that the petitioner was not E 
liable to pay the amount of decree unless the principal debtor was 
proceeded against. On revision, the High Court left open the second 
question and upheld the order of the trial Court. Hence this appeal. 
Dismissing the SLP, this Court 
HELD : 1. The High Court was right in its conclusion that there is 
no need to make an application within the period of limitation as 
provided under Articles 120 and 121 of the Limitation Act to bring the 
LRs. of deceased defendant on record and to seek to set aside the 
abatement after the expiry of 90 days. [77 C] 
2. A decree passed confers rights and imposes liabilities _which are 
fixed until the decree is reversed or varied in appeal. The preliminary 
decree declares rights of the plaintiff and liabilities of the respective 
defendants and they become final. The suit would not abate between 
F 
G 
the date of preliminary decree and final decree. [76 Fl 
H 
73 
A 
B 
c 
D 
74 
SUPREME COURT REPORTS 
[1994) SUPP. 6 S.C.R 
3. Section 52 CPC adumbrates that a money decree passed against 
the legal representative of the deceased defendant, out of the property 
of the deceased in his hands, may be executed by attachment or sale of · 
that property. If the legal representatives fail to satisfy the court that 
he duly applied the property to discharge the debt or the court is not 
satisfied of his so doing, the court would proceed against the legal 
representatives personally and to apply the property by sale to satisfy 
the decree debt. At the time when 01e application for passing the final 
decree is filed, it is enough if the legal representatives are impleaded, all 
or any of the legal representatives of the deceased defendant-judgment 
debtor to represent the estate of the deceased. If death of defendant 
takes place pending passing of final decree they may be brought on · 
record under section l~l CPC or Order 1 Rule 10 CPC. [76 H, 77 A, BJ 
CIVIL APPELLATE JURISDICTION : Special Leave Petition (C) No. 
22705 of 1994. 
From the Judgment and Order dated 19.4.94 of the Kamataka High 
Court in C.R.P. No. 782 of 1994 
N.S. Hegde, G.V. Chandrashekhar and P.P. Singh for the Petitioner. 
The following Order of the Court was delivered : 
E 
Delay condoned. 
F 
G 
. H 
The father of the petitioner was the 2nd defendant in O.S. No. 232/86 
filed in the Court of Civil Judge at Udupi. The suit had been filed under 
Order 34, Rule 4 for the recovery of the money due under a hyptheca. A 
preliminary decree was passed in the suit on June 28, 1989 on the basis of a 
joint memo filed by the parties. Thereafter, Muthu Marakala, the second 
defendant/surety, died. An application No. 316/91, to pass final decree, 
when was filed by the plaintiff, it also made an application to bring the 
petitioner as legal representative of deceased second respondent, which was· 
... pposed ·on the ground that such application was barred by limitation and 
the preliminary decree, itself, had. abated· after the expiry .of 90 days from 
the date of death of defendant-2. An objection had also been ~aised th~t the:. 
petitioner was not liable to pay the amount of the decree unless principal · 
debtor, defendant was proj::eeded against. That application was allowed by 
the trial court. On revision, while leaving open and second question, the. 
· High Court of Kamataka

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