P.S. Sundaram Iybr vs Sangawa and others.

This is an appeal at the instance of the decree holder against an order of the Subordinate Judge, Tiruchirapalli, declining to issue a garnishee

order on Kannan Devan Mill Produce Co., Tiruchirapalli. One B.C.Bushad, who was a whole-sale dealer for the sale of the products of the

garnishee was indebted to the appellant in a large sum of money. He died in December 1948. The agency, which the deceased had with the

garnishee was later taken up by his widow, Sangawa, the first respondent to this appeal. In the course of the business, she became entitled to

certain moneys by way of commission for the sale of tea done by her. The appellant filed C. S. No. 3 of 1951 on the file of this Court in respect of

amounts due from Bushad impleading the respondents 1 to 3 herein, namely, the widow and his two minor children. He obtained a decree on 6th

October, 1952, for a sum of Rs. 15,421, plus costs against the respondents limited to the extent of Bushad''s assets in their hands. That decree has

been affirmed on appeal. He then applied to this Court for transfer of the decree for execution by the Sub Court, Tiruchirapalli, as he came to

know that certain moneys belonging to the deceased Bushad were with Kannan Devan Mill Produce Co., who were having their head office at

Tiruchirapalli. The decree was accordingly transmitted for execution to that Court, where he applied for attachment of a sum of Rs. 25,000 which

was standing to the credit of the respondents. They pleaded that the sum of Rs. 25,000 was commission earned by the first respondent in respect

of her own agency which was granted to her by the garnishee on 9th March 1959 and that it had nothing to do with any asset of the deceased. The

learned Subordinate Judge accepted that contention and dismissed the execution application. We are of opinion that in rejecting the application of

the decree holder ,the learned Subordinate Judge has not enquired into the matter as fully as he should have done. Under S. 52 (1), C. P. Code,

where a decree for money is passed against a party as the legal representative of a deceased person, it would be open to the decree holder to

attach and bring to sale any of the properties left by the deceased. But where the legal representatives received certain assets of the deceased but

at the same time disposed of them he will have to satisfy the Court that in so disposing of the assets, he had applied the proceeds in paying off the

debts of the deceased. In other words, in such a case it will be the duty of the legal representatives to account for the assets received by him. So

long as the property of the deceased which has come into the hands of the legal representative have not been duly applied by him, the decree may

be executed against the legal representative as if such a decree had been passed against him personally to the extent of non application. Therefore,

two important questions arise in this case. The first is whether the funds now standing to the credit of the first respondent with Kannan Devan Mill

Produce Co., could really be said to be part of the assets of the deceased Bushad, and secondly, even if it be regarded that the amount now

standing to the credit of the first respondent was her money, what happened to the assets of Bushad which were in the hands of the garnishee on

the date of the death of the former. If there were no such moneys, then it can be taken that any amount standing to the credit of the first respondent

in the books of the garnishee did not form part of the assets of the deceased. But if there were some moneys, then the Court should have

investigated as to what happened to them. Let us illustrate it by means of an example. Suppose there was a sum of Rs. 40,000 with the garnishee

to the credit of the deceased on the date of his death. His legal representatives could be entitled to that money. Suppose, subsequently. the first

respondent, as a result of her own exertions, was able to earn a commission of Rs. 25,000 and that out of the total amount of Rs. 65,000 she had

withdrawn an amount to the extent of Rs. 40,000 in such a case, it cannot be stated as a matter of law that the balance of Rs. 25,000 necessarily

forms part of the moneys of the first respondent. It may be that the moneys of the deceased were retained and the moneys of the first respondent

drawn. Under those circumstances, it will be the duty of the first respondent to account to the Court as to what happened to the moneys, which

were standing to the credit of the deceased, at the time of his death, with the garnishee. Again if it were to be held that the sum of Rs. 25,000 now

standing to the credit of the first respondent with the garnishee is her own money, the question will then arise under S. 52 (2) of the C.P. Code, as

to whether any property of the deceased still retrains in the possession of the judgment debtors and whether they have duly accounted for the

assets received. It has been held in Suryanarayana v. Rajalakshmi (1) that to make S. 52, C.P.C., applicable it is not essential that the Court

should be satisfied that the legal representatives have exhausted-all the properties that they obtained as part of the estate of the deceased. No

investigation of that kind has been made in the present case. In paragraph 8 of the learned Subordinate Judge''s judgment, there is a reference to

certain payments of income tax due by the deceased. But no effort has been made to take an account of the assets received. It is said that they

were paid out of certain bank deposits; under these circumstances, we are of opinion that the matter can be finally disposed of only after full

investigation of the question. If the Court finds that the assets now standing to the credit of Kannan Devan Mill Produce Co., represent part of the

estate of the deceased, it will be then its plain duty to direct execution to issue. For that purpose the first respondent should be called upon to

account for the assets received from Kanan Devan Mill Produce (sic) in respect of the moneys due (1) (1950) 1 M.L.J. 192=63 L.W. 153. to her

deceased husband. It is no doubt stated that the legal representatives have got certain immoveable properties which they inherited from the

deceased somewhere in the Bombay State. Before the Court can call upon the decree holder to proceed against those properties it must first be

satisfied that the moneys now with the garnishee do not represent or could not be said to represent the estate of the deceased. It is also

represented to us that subsequent to the disposal of the execution petition by the lower Court, the first respondent has withdrawn even the sum of

Rs. 25000 that was standing to her credit with garnishee. That, however, will not make any difference to the question that has to be decided in the

case. The lower Court will call upon the first respondent to bring back into Court the sum withdrawn by her subsequent to the attachment made in

the case.

The order of the lower Court will be set aside and the appeal remanded for disposal in the light of the observations we have made herein. Costs

to abide the result.