(a) A money decree passed against a person who died after the passing of a decree where the assets left by the deceased judgment-debtor have been disposed of by his legal representatives to pay off their personal debts.
(b) A money decree passed against a firm in a suit in which the partners were not individually served with summonses but the decree-holder intends to execute the decree against the personal property of the individual partners.
(a) The decree-holder will file an application for the execution of the decree in the court which passed the decree and will give particulars required under R. 11 of O. 21, viz., the number of the suit, the names of the parties, the date of the decree, whether any appeal has been preferred from the decree, whether any payment or other adjustment of the matter has been made, whether any previous applications have been made for the execution of the decree, the amount with interest due upon the decree, the amount of the costs, if any awarded, the name of the person against whom execution of the decree is sought and the mode in which the assistance of the court is required.
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ADVERTISEMENTS:
The details of the property of the judgment-debtor left in the hands of the opposite parties (representatives of the deceased) as also its value will also be given in the application with a prayer that the decree should be executed personally against the opposite parties. A notice will go to the opposite parties showing cause why the decree be not executed against them personally and the court will determine the extent of the liability of the opposite parties on the basis of Ss. 50 (1) and 52 of the Code.
Section 50 (1) provides that 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. Section 52 provides that where a decree is passed against a party as the legal representative of a deceased person, and the decree is for the payment of money out of the property of the deceased, it may be executed by the attachment and sale of any such property.
Where no such property remains in the possession of the judgment-debtor and he fails to satisfy the court that he duly applied such property of the deceased as is proved to have come into his possession, the decree may be executed against the judgment-debtor to the extent of the property in respect of which he has failed so to satisfy the court in the same manner as if the decree had been against him personally.
ADVERTISEMENTS:
(b) The decree-holder should proceed under R. 50 (2) of O. 21, C.P.C. by applying to the court which passed the decree for leave to cause it to be executed against the personal property of the individual partners of the firm against which a decree has been passed.
Where the liability is not disputed the court will grant such leave, but where such liability is disputed the court may order that the liability of such persons be tried and determined in any manner in which any issue in a suit may be tried and determined.
Where the liability of such person has been tried and determined in favor of the decree-holder the decree shall be executed against partners as if the decree was against them personally.
The decree-holder in the present case will, therefore apply to the court which passed the decree for leave to cause the decree to be executed against the un-served partners of the firm and the liability of the partners shall be determined under O. 21, R. 50 (2) C.P.C.