Execution of Money Decree -- Attachment of Property in Hands of Legal Representatives of Deceased Debtor -- Liability limited to estate inherited, mortgage no bar to attachment
(i) Civil Procedure Code, 1908, S.52 -- Execution of Money Decree -- Attachment of Estate in Hands of Legal Representative -- A decree passed against the legal representative of a deceased person may be executed by attachment and sale of any property of the deceased that has come into the hands of such legal representative and has not been duly disposed of. (ii) Civil Procedure Code, 1908, S.52 -- Execution of Money Decree -- Nature of Liability of Legal Representatives -- Liability of legal representatives of a deceased debtor is not personal in nature and is limited strictly to the extent of the estate of the deceased that has come into their hands. (iii) Civil Procedure Code, 1908, Ss.52, 53, O.21 -- Execution of Money Decree -- Duty of Court to Examine Estate Before Attachment -- Once a decree fixes liability upon legal representatives, the court must examine whether the property sought to be attached forms part of the estate of the deceased and proceed strictly in accordance with law. (iv) Civil Procedure Code, 1908, Ss.52, 53, O.21 -- Execution of Money Decree -- Attachment of Mortgaged Property -- Attachment in execution does not extinguish prior encumbrances and remains subject to existing charges or mortgages. Mere existence of a mortgage on the property is not a valid ground to reject an execution petition at the threshold. (v) Civil Procedure Code, 1908, O.21 R.30 -- Execution of Money Decree -- Attachment Not Barred by Mortgage -- Order 21 CPC does not prohibit attachment of property merely because it is mortgaged. Rights of the mortgagee remain unaffected, and the claim of the decree holder ranks subject to such encumbrance.
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