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Legal Representative

June 15, 2021

Legal representative:-

Section 2(11) of CPC defines the expression legal representatives as follows:-

11. “legal representative” means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued;

Section 50 of CPC reads under:-

“(1) 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 deceased.

(2) Where the decree is executed against such legal representative, he shall be liable only to in the extent of the property of the deceased which has come to his hands and has not been duly disposed of ; and for the purpose of ascertaining such liability, the Court executing the decree may, of its own motion or on the application of the decree-holder, compel such legal representative to produce such accounts as it thinks fit.”

There was no definition of legal representative in the old Civil Procedure Code and the meaning of legal representative in Section 234 of the old Civil Procedure Code was fully discussed in the case of Dinamoni Chaudhurani v. Elahadut Khan (1904) 8 C.W.N. 843, and the present definition in Section 2(11) appears to be in conformity with the meaning of the term explained in that case. Brett J. observed at page 852:-

The term ‘legal representative’ has been used in Section 234 to meet the circumstances of a certain event, viz., the passing of the property the subject of the litigation on the death of the deceased judgment-debtor to her successor and to include such successor either to her estate or to the property in suit.

Woodroffe J., after laying down that the expression “legal representative” was commonly confined to heir as well as executor and administrator, observed as follows at page 856:-

The section has, however, been applied to cases the where the succession is otherwise than by heir ship to the last holder of an estate as also to cases where the estate accrues to the present holder by survivorship. In these cases where a decree is passed against a judgment-debtor not in his or her personal capacity but in a representative capacity the decree may be executed against the person who, though not an heir of the judgment-debtor the last holder of the estate, is entitled thereto after her death whether as reversioner or surviving coparcener. See. Ganesh Sakharam Saraf vs Narayan Shriram Mulaye, (1931) 33 BOMLR 1144.

 In Chunilal Harilal v. Bai Mani it was held, firstly, that the definition of “legal representative” in Section 2 of the Civil Procedure Code (newly added in the Code of 1908) does not include a coparcener in a Hindu joint family who takes an estate not by succession or devolution but by survivorship (in which case Section 50 will not apply); and, secondly, that Section 53 has no application except in the case of money decrees. This decision has been approved in Dwarka Baa v. Krishan Kishore (1921) I L.R. 2 Lah. 114 and Jagannath Singh v. Moti Lal (1928) I.L.R. 45 All. 465. A different view of the construction of Section 53 has been taken by the Madras High Court in Meyyappan Servai v. Meyyappan Ambalam but the Court did not hold that; an injunction decree could be executed under that section against a coparcener not a party to the suit.

Section 50 CPC deals with execution of decrees of all kinds including that of permanent injunction. Section 146 CPC provides that where any application which can be made by or against any person, it may be made by or against any person claiming under him except as otherwise provided in the Code. Order 21 Rule 16 deals with execution of decree by a transferee with which we are not concerned in this case. Order 21 Rule 32 provides the mode for execution of decree for injunction, restitution of conjugal rights and specific performance. Section 50 CPC which is a specific provision with respect to execution of decree against legal representatives, would be attracted read with Order 21 Rule 32 CPC. (See. Ramesh Kumar vs Anuj Kumar And Anr, Date of Judgment on 7 November, 2019. Himachal Pradesh High Court).

Legal representative means a person who in law represents the estate of a deceased person and includes any person who intermeddles with the estate of the deceased and where a party acts in a representative character, the person on whom the estate devolves on the death of the party so acting, according to Section 2(g), Arbitration and Conciliation Act, 1996 .

 A legatee under a will intending to represent interest of estate of deceased testator held, is a “legal representative”, Suresh Kumar Bansal v. Krishna Bansal(2010) 2 SCC 162: (2010) 1 SCC (Civ) 365. 

 A legatee under a will, who intends to represent the estate of the deceased testator, being an intermeddler with the estate of the deceased, will be a legal representative, Jaladi Suguna v. Satya Sai Central Trust(2008) 8 SCC 521.

In the context of Section 50 of CPC and Section 232 of Code of Civil Procedure 1882, it has been held that “legal representatives” are bound by previous proceedings in an execution against the deceased judgment debtor. A residuary legatee in possession of the judgement-debtor’s estate is his legal representative even if letters of administration may not have been issued to him if it was applicable. See. Harihar Prasad Singh and Others vs Balmiki Prasad Singh and Others CDJ 19. See also. Order 22 Rule 4 of CPC.

Case- Law:-

In Prabhakara Adiga vs Gowri And Ors (2017) 4 SCC 97, the Honourable Supreme Court in paragraph 25 held as under:-

It is apparent from section 50 CPC that when a judgment-

debtor dies before the decree has been satisfied, it can be executed against legal representatives. Section 50 is not confined to a particular kind of decree. Decree for injunction can also be executed against legal representatives of the deceased judgment-debtor. The maxim “actio personalis moritur cum persona” is limited to certain class of cases as indicated by this Court in Girijanandini Devi v. Bijendra Narain Choudhary (supra) and when the right litigated upon is heritable, the decree would not normally abate and can be enforced by LRs. of decree-holder and against the judgment-debtor or his legal representatives. It would be against the public policy to ask the decree-holder to litigate once over again against the legal representatives of the judgment-debtor when the cause and injunction survives.

In Amritlal Vadilal v. Kantilal Lalbhai AIR 1931 Bombay 280 it has been observed that a decree for injunction does not run with the land and cannot be enforced in absence of the statutory provision against surviving member of joint family or against purchaser from judgment­debtor but can be enforced against legal representatives joined under Section 50 CPC and so also against transferees from original judgment­debtor as per Section 52 of the Transfer of Property Act.

In Ganesh Sakharam Saraf v. Narayan Shriram Mulaye AIR 1931 Bombay 484 it was held that though an injunction is a personal remedy and does not run with the land, ordinarily a decree for an injunction can be executed only against the persons against whom the injunction is issued and cannot be executed against any other person in the absence of a statutory provision. If an injunction decree is capable of being enforced against a person other than the judgment­ debtor by virtue of a statutory provision contained in Section 50 CPC, it can be executed equally against the son who inherits the estate of his father as well as against one who was joint with the father and brought on the record as his legal representative. It was also observed that where a decree had been passed against the father as a manager and representative of the joint family, it could be executed against his son .

 In K. Umma v. T.K. Karappan AIR 1989 Ker 133 the High Court of Kerala has observed that where a decree for injunction is obtained against a sole judgment­debtor, restraining him from obstructing the plaintiff in erecting a fence on the boundary of his property, the decree can be executed against the legal representatives of the judgment­debtor, if he dies.

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