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Judgment
Balakrishna Ayyar, J.—On a mortgage executed by the mother of the respondent, a lady called Rajyalakshmi Amma, the receiver of the
mortgagee''s estate filed a suit after the death of the mortgagor and obtained a decree in O. S. No. 9 of 1929 on the file of the Subordinate Judge
of Ellore. The sale of the hypotheca fetched about Rs. 15,000/-. The balance due under the decree still amounted to about Rs. 28,000/- and for
this sum a personal decree was passed on 9th August 1934 against the assets of the deceased in the hands of her heirs. In E. P. No. 70 of 1937
on the file of the Subordinate Judge of Ellore it was found that the value of the assets of deceased Rajyalakshmi Amma in the hands of the
respondent was Rs. 4000/-, and to recover this sum the receiver attached certain properties in her possession. The respondent then contended
that those properties had been gifted to her by her father on 11th August 1934, that other properties belonging to the deceased consisting of some
154 acres land in Yepur still remained available for the decree-holder and that the receiver should in the first instance be directed to proceed
against those properties. The receiver contended that in E. P. No. 25 of 1935 on the file of the Sub-Court, Ellore, it had been decided that the
Yepur property did not belong to the deceased mortgagor and that it was there-fore open to him to proceed against the personal property of the
petitioner to recover the sum of Rs. 4000/-. He also contended that it was expensive and inconvenient to proceed against the Yepur properties
since those properties were held under 82 pattas and the Sub Registrar insisted on 82 separate encumbrance certificates being taken which would
make the cost of proceeding against those properties prohibitive. The Subordinate Judge observed :
Under these circumstances the ends of justice will be met by directing the receiver to proceed against the other properties in the first instance and
after satisfying the Court that the deceased mortgagor had no interest in the Yepur property proceed against the property in question (viz., the
property of the respondent).
He therefore made an order along these lines while at the same time maintaining the attachment which bad been effected of the respondent''s
properties. The receiver had now appealed. Section 52(2), Civil P. C. provides:
Where no such property ""(i.e., property of the deceased debtor)"" remains in the possession of the judgment-debtor and he fails to satisfy the
Court that he has 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.
Mr. Somasundaram, the learned advocate for the appellant, pointed out that it had been found in appropriate proceedings to which the respondent
was a party that property of the value of Rs. 4000/- which belonged to the deceased mortgagor had come into her hands, that this property which
consisted mostly of jewellery had been used by the respondent for her own purposes and that in any event she had failed to satisfy the Court that
she had applied the property to satisfy the debt of the deceased mortgagor. It was clearly reasonable to presume that no such property remains in
her possession. That being so, he claimed that he is entitled to execute the decree against the personal property of the respondent. Mr. Narasaraju,
the learned advocate for the respondent, attempted a twofold answer. The first was that before the decree-holder could proceed against the
respondent he was bound to exhaust all the properties of the deceased mortgagor. Secondly, the Court has a discretion in the matter and it is open
to it to direct that the properties of the deceased mortgagor should be proceeded against in the first instance and that in the present case the
learned Subordinate Judge has exercised his discretion properly.
There is nothing in the language of Section 52, Civil P, C., to suggest that the Court has a discretion, in the matter, and this argument must,
therefore, be rejected. In support of his first point that all the properties of the deceased mortgagor should be exhausted before the assets in the
hands of the respondent could be proceeded against. Mr. Narasaraju referred to the decisions in Indro Narain v. Kristo Chunder, 14 W. R. 362
and Bhagwati v. Madan Mohan, A. I. R. 1930 Lah. 354 : 121 I. C. 289. The first case has no application because Section 203 of the Code of
1859 on the language of which that decision was based differs on the point that is now relevant in material respects from the language employed in
Section 52 of the pre-sent Code of Civil Procedure. Section 203 of the Code of 1859 required the decree-holder to satisfy the Court that no
property of the deceased could be found such as he could attach and sell in execution of his decree. Such a comprehensive restriction is not to be
found in Section 52 of the present Code. In the second case, the High Court remitted the matter for an enquiry into the question whether any
property of the deceased debtor other than that which it was alleged the legal representatives had disposed of was in their possession. The order
of remand therefore postulated that if other property of the deceased existed in the hands of the legal representatives, it would have to be
proceeded against first. In the case before us, it is not alleged that there is any other property of the deceased mortgagor in the hands of the
respondent against which the appellant could proceed. It remains to add that in both these cases the legal representatives were dealt with
collectively and the individual liability of the different legal representatives did not arise for determination.
Mr. Narasaraju finally contended that it is an ordinary rule of construction that the singular includes the plural and that therefore, the word
judgment-debtor"" occurring in Section 52(2) must be read as meaning ""judgment debtors"". In that view, according to him, the decree-holder
would not be entitled to proceed personally against any of the legal representatives until it has been shown that no one of them is in possession of
any other property of the deceased. True, in a statute the singular includes the plural; but to read the word ""judgment-debtor"" where it first occurs
in Section 52(2) as equivalent to ""judgment-debtors"" would be tantamount to saying ""any judgment-debtor"" and that involves the importation of a
wholly new idea. The construction which Mr. Narasaraju proposes is therefore repugnant to the context. Besides, it is opposed to principle.
Ordinarily, when a decree has been passed against two or more judgment-debtors, it is open to the decree-holder to proceed against which, ever
judgment-debtor he chooses. The choice is his and no judgment-debtor can say that before he is proceeded against, the decree-holder must
exhaust his remedies against someone else. It does not appear that there is any intention in Section 52 to alter this principle in its application to the
legal representatives of a deceased debtor. But if Mr. Narasaraju''s argument were correct, the decree-holder would have first of all to ascertain
which of the legal representatives of the deceased debtor retains the property of the deceased intact and then proceed against him. That would
lead to this result; the person who has disposed of all the properties of the deceased would be the last individual who can be proceeded against.
That would seem to be a strange result.
To make Section 62 applicable, it is sufficient, to satisfy three conditions. The legal representative must have received some property of the
deceased; he must no longer be in possession of it; the Court must be satisfied that he has failed to duly apply that property to discharge the debt
of the deceased. When these requirements are fulfilled, the decree may be executed against the legal representative as if it had been passed against
him personally. Section 52 does not impose any other fetter on the decree-holder.
The result, therefore, is that the appeal is allowed with costs. The decree-holder will been entitled to proceed against the respondent to the
extent of Rs. 4000/- with interest and costs thereon.