Allowed

Smt. Edulkanti Hamsamma, v. C. Manohar Reddy

Telangana HC29 Jul 2011CRP/1565/2011

Case brief

AI extract

What is this about?

This order disposed of a civil revision against an execution court order that exempted the widow-petitioner's share of ancestral property from attachment. The High Court directed the decree holder to proceed against the shares of the two son-petitioners.

What did the court decide?

Decree holder directed to proceed with execution against the shares of the second and third petitioners.

Smt. Edulkanti Hamsamma, Vs C. Manohar Reddy — Specific Performance | Telangana HC (2011)

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THE HONOURABLE SRI JUSTICE GHULAM MOHAMMED C.R.P.No.1565 of 2011

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ORDER

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This civil revision petition is directed against the order dated 15.03.2011, passed in E.P.No.6 of 2010 in O.S.No.101 of 2004 by the learned XI Additional Chief Judge (Fast Track Court), City Civil Court, Hyderabad.

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2. The respondent-decree holder obtained a decree against the petitioners-judgment debtors for a sum of Rs.10,18,989/- in O.S.No.101 of 2004 filed for recovery of money. Stating that the judgment debtors having sufficient means did not pay the decretal amount and did not deposit 50% of the decretal amount as directed by the Hon’ble High Court in CCCAMP No.534 of 2009 in CCCA No.164 of 2009, the decree holder filed E.P.No.6 of 2010 under Order XXI Rule 11 CPC seeking to issue warrant of attachment of EP schedule property. Through order dated 15.03.2011, the executing Court having held that the share of the first petitionerwidow is exempted from the attachment, directed the decree holder to proceed against the shares of second and third petitioners-sons. Aggrieved by the same, the petitionersjudgment debtors filed the present revision.

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3. Heard both sides.

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4. The judgment debtors in their counter filed before the executing Court pleaded that they did not get any property from their deceased father and as such, the decree holder cannot proceed against them for attachment.

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5. The record shows that the EP schedule property is the

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ancestral property, which is now in the hands of the petitioners after the death of the deceased Narasimha Reddy. As per Section 53 CPC, the property in the hands of a son or other descendant which is liable under Hindu law for the payment of the debt of a deceased ancestor, in respect of which a decree has been passed, shall be deemed to be the property of the deceased, which has come to the hands of the son or other descendant as his legal representative. The executing Court held that the decision of the Orissa High Court reported in AIR 1979 ORISSA 130 relied upon by the judgment debtors, is inconsonance with Section 53 CPC and as such, the share of the first petitioner becomes immune and cannot be attached and thereby, it directed the decree holder to proceed for execution against the shares of the second and third petitioners.

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6. Since the suit is filed against the LRs of borrower i.e., deceased Narasimha Reddy and a decree is passed, the decretal amount has to be recovered from the property of the deceased, which is now in the hands of the judgment debtors. As the share of the first petitioner-widow is exempted from attachment, the Court below directed the decree holder to proceed against the shares of second and third petitioners for discharge of the decretal amount by the impugned order, which does not warrant any interference by this Court. However, the respondent-decree holder is directed to proceed against the shares of second and third petitioners.

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Accordingly, the Civil Revision Petition is disposed of. No costs.

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__________________________ GHULAM MOHAMMED, J

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Date:29.07.2011.

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Smt. Edulkanti Hamsamma, v. C. Manohar Reddy

Case brief

What is this about?

What did the court decide?

Smt. Edulkanti Hamsamma, v. C. Manohar Reddy

Case brief

What is this about?

What did the court decide?

What the court decided

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