Find a Lawyer

Civil Revision No.1000 of 1982, heard on 5th February, 1984.

Civil Procedure Code (V of 1908)--

---Ss.115,50 and O.XXI, r.22--Execution of decree--Judgment-debtor, dying before issuance of warrants of attachment--Such warrants issued against "legal representatives" of deceased judgment-debtor, without notice and without determination of factum of such persons being in fact legal representatives--Such orders of attachment, held, were passed by executing Court without applying mind and mechanically Warrants of attachment could not be issued against petitioners without first judicially determining question whether petitioners were legal representatives of deceased--Order of attachment set aside in circumstances.

Amir Alam Khan for Petitioner.

Syed Sajjad for Respondent.

Date of hearing: 5th February, 1984.

This judgment shall dispose of these two revision petitions (C.R. Nos.1000 and 1001 of 1982) as the questions of law and facts involved are one and the same in both these petitions.

2. Briefly stated, the relevant facts for the disposal of these petitions are that decrees were obtained against one Muhammad Hanif Qureshi by the State Life Insurance Corporation, the respondent. Thereafter, warrants of the attachment were obtained but before these warrants could be executed, Muhammad Hanif Qureshi, the judgment debtor, died. The death of the judgment-debtor was reported to the Court on 28-5-1981. The decree-holder was directed to submit a,; application for bringing the heirs on record.

3. Learned counsel for the parties state that the warrants attachment were filed in the names of the heirs of the deceased judgment-debtor and the warrants so filed were ordered to be executed. It is admitted that before issuing warrants in the names of the heir i.e. the present petitioners, neither any notice was issued to them nor the question whether the petitioners are the "legal representatives" of the deceased judgment-debtor, was considered or determined. it may also be noted that certain personal belongings and a car were ordered to be attached and the warrants of attachment were also got issued. These warrants were returned with, the report that some of the petitioner had offered resistance and then orders were obtained from the Court for police help as well as for breaking open the locks and door. These orders were passed by the learned Executing Court without applying' mind and mechanically. It is conceded that under the warrants neither, any immovable property was attached nor possession of any such property was to be obtained. The petitioners thereafter submitted applications in both the execution cases under section 50 read with section 151 C.P.C. The application submitted in execution case No.227/10 was dismissed by the learned Executing Court vide order dated 5-4-1982. The application submitted in the other execution case (No.18/10) was dismissed vide order dated 6-5-1982. The reasons given for dismissal were that action under Order XXI rule 97 C.P.C. was already under process against the applicants; that the applicants had admitted that they were the heirs of the judgment-debtor and, as such, they were liable to the extent of the estate received by them and that without filing of the security as contemplated by Rule 23-A Order XXI C.P.C. objection application was not maintainable. These orders have been challenged it these revision petitions.

4. Learned counsel for the respondent has not been able to support these orders as the reasons given are wholly extraneous as well as irrelevant. It is not denied that the warrants of attachment could not be issued against the petitioners without first judicially determining the question whether the petitioners were the legal representatives of i3 the deceased judgment-debtor in view of the provisions contained in section 50 read with Order XXI, rule 22 C.P.C. Thus, there is no alternative but to set aside the impugned orders dated 5-4-1982 and 6-5-1982. Order accordingly. These revision petitions are thus accepted wit's costs.

A.A

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.