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TMI Blog1927 (2) TMI 10X X X X Extracts X X X X X X X X Extracts X X X X ..... nite finding as to the allegation of sale in lieu of dower. He said: I am not inclined to hold that the debt of ₹ 25,000 had been proved. There is no thing to prevent the plaintiff from proceeding against the property at present in the hands of the contending defendants as assets of Abdul Qayum. 2. On appeal the learned Subordinate Judge doubted that the transfer was really a genuine transaction but he said that he was not going to decide what was Mt. Tamiz Bano's dower and he dismissed the appeal. In this Court, it is said that the tower appellate Court should have come to a clear decision as regards the alleged transfer in lieu of dower and that no decree could be passed against the original appellant, Mt. Tamiz Bano, so long as it was not proved that she was in possession of any asset of her husband. I might mention here that Mt. Tamiz Bano having died pending the appeal, some of the original defendants are now prosecuting the appeal as her heir. 3. It appears to me that the question whether the legal representatives of a deceased debtor are or are not in possession of any asset of the deceased need not be tried at the present stage of the litigation. When ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s debt and then to find out how he would realise it. Till he has obtained his decree he cannot seek any remedy to enforce payment. His remedy to enforce a decree for money is indicated by Section 52. That remedy is by attachment and sale of an asset of the deceased debtor. When an application for attachment is made it is open to the legal representative to prove either that the property sought to be attached is not the property of the deceased or that he has sufficiently accounted for such property of the deceased as came into his possession. But in any case till a decree has been obtained by the creditor, he has no remedy. The same view was taken in Girdhar Lal v. Bai Shiv [1884] 8 Bom. 309 and Lallu Bhagwan v. Tribhuvan Moti Ram [1889] 13 Bom. 653 under the Code of Civil Procedure of 1882. 6. In the circumstances I think the lower appellate Court was right in not deciding the question of sale in lieu of dower. The stage for any such decision has not arisen. Even if there be no immovable property left, such as may be taken in execution of the decree, the plaintiffs, if they be armed with a decree, might seek out, in the course of 12 years within which they can execute the decr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Vol. II, pp.651 and 652, the right of retainer is based on the consideration that a personal representative in his personal capacity could not sue himself at law in his representative capacity and that it would be hard that this difficulty should deprive him of the natural advantages of his possession. 12. The right of preference (pp. 652 and 653 ibid) is said to have arisen thus: Inasmuch as any creditor of the deceased could sue the personal representative and get judgment from him, unless the representative was in a position to plead plene administravi the only remedy of the representative at common. Law was to pay the debt and avoid further consequences. 13. And if he could do that after action was brought, he was bound to wait (if he was satisfied of the genuineness of the debt) until action was brought and costs incurred. Thus, it is said, the personal representative acquired his peculiar right which is obviously liable to abuse and collusion. These considerations apply equally in India. Indeed the right of preference is the natural consequence of a legal representative possessing the privileges of the deceased, and the right of retainer is only a form of the ri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 the decree had been against him personally. 16. His argument is that under the definition the legal representative of a party sued in a representative character is described as the person on whom the estate devolves without any such qualifying words as unless he has duly applied the estate. No doubt a legal representative is such, irrespective of whether at the moment of suit he is in possession of or is likely to acquire any assets and under Order 22, Rule 4 he can be brought on the record. It does not follow that there is any right to a decree against every legal representative, or that he cannot plead due application of all the assets of the deceased. As to Section 52 the argument appears to be as follows: The section provides for the plea of due application of the assets i.e., of plene administravi being taken in execution proceedings. Therefore it must be inferred that it cannot be taken at an earlier stage, namely, in the suit. 17. In English law the plea of plene administravi could ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has duly applied all the assets available or proved to be available. 20. My conclusion then is that the lower Courts were bound to decide the question whether the defendants had duly applied the assets that had come into their hands and this required a decision as to the fact and amount of the dower debts. 21. Now I think that the trial Court intended to find as a fact that there was no dower debt proved and the lower appellate Court that no dower debt of a specific amount was proved, which comes to the same thing. This is a finding of fact by which we are bound in second appeal. 22. The suit was therefore rightly decreed; but as the defendants were held to have had assets and to have wrongly applied them the decree should have been a personal decree against them, jointly and severally, as they all admit a share of the assets excluding the debt claimed: See Nathu Ram Siriji Set v. Kutti Haji [1897] 20 Mad. 446 and Mihi Lal v. Babu Lal A.I.R. 1922 Oudh 200. The decree as it stands is wrong as it restricts the plaintiffs to execution against the assets of K. Abdul Qayum; but as no appeal has been filed by the plaintiff it must be deemed that they are satisfied with the de ..... X X X X Extracts X X X X X X X X Extracts X X X X
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