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CPC, 1908 · Part II · Execution · Decree against a representative

Enforcement of a Decree against a Legal Representative

When a decree runs against someone as a legal representative, it bites the estate — but if he cannot account for estate that reached him, it pierces through to his own pocket, to that extent.

§ 52

How to read Section 52

The setting

Here the decree is passed against the representative in that capacity — for money payable out of the deceased’s property. (Contrast § 50, where a living debtor dies after the decree.)

First, the estate

Such a decree is executed by attaching and selling the deceased’s property — the representative answers with the estate, not his own assets.

Then, the person

But if the estate is gone and he cannot account for property proved to have reached him, he becomes liable personally — to that unaccounted extent.

The bare Act

52. Enforcement of decree against legal representative.

(1) 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.

(2) Where no such property 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.

Provenance § 52 stands as enacted in the original Code of 1908 — the bare Act carries no amendment to it.

Key terms decoded

As the legal representative

Sued, and decreed against, in the representative capacity — not in his own personal right.

Out of the property of the deceased

Payable from the estate, not from the representative’s own assets.

Duly applied

Properly accounted for or used the estate that reached him.

As if the decree had been against him personally

Enforced against his own assets like an ordinary personal decree — but only to the unaccounted extent.

The picture — estate first, person only on default

The estate is the primary fund. The representative’s own assets are reached only where he has made away with, or cannot account for, estate that demonstrably came to him — and then only to that extent.

Section 52, part by part

Sub-section (1) aims execution at the estate; sub-section (2) is the default rule that reaches the representative personally. Open each:

1 (1) Against the estate
2 (2) Against him personally

When the decree itself names the representative in that capacity, execution goes first to the deceased’s property.

📜Decree vs party as LR

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💰Money out of the estate

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🏷Attach & sell estate property

Rep-capacity decree

Where a decree is passed against a party as the legal representative of a deceased person

The decree is made against someone in his representative capacity — he was sued as the legal representative (§ 2(11)) of the deceased, not in his own right.

Money out of estate

and the decree is for the payment of money out of the property of the deceased

And it is a money decree, expressly payable out of the deceased’s property — the estate is the designated fund, not the representative’s wealth.

Attach & sell estate

it may be executed by the attachment and sale of any such property

Execution proceeds by attaching and selling that estate property — the § 51(b) mode, but confined to the deceased’s assets.

Sub-section (2) is the devastavit rule — if the representative has wasted or cannot account for the estate, the decree turns on him.

😥No estate left with him

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🧾Can’t account for estate that reached him

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👤Personally liable — to that extent

Estate gone

Where no such property remains in the possession of the judgment-debtor

The starting condition for (2): none of the deceased’s property is left in the representative’s hands to attach and sell.

Can’t account

and he fails to satisfy the Court that he has duly applied

And he cannot satisfy the court that he duly applied (properly used — e.g. towards lawful prior claims) the estate. The burden is on him to account.

Proved to have reached him

such property of the deceased as is proved to have come into his possession

This bites only on estate that is proved to have come into his possession — the decree-holder must first show it reached him; only then must the representative account for it.

Personal — to that extent

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

Then execution runs against the representative himself — but only to the extent of the property he failed to account for, never beyond it.

As if personal decree

in the same manner as if the decree had been against him personally

And to that extent it is enforced as though it were a personal decree against him — opening the full § 51 modes (including, subject to its safeguards, arrest) against his own assets.

The two sub-sections set a sequence and a ceiling: (1) the estate is the first and natural fund — attach and sell the deceased’s property; (2) only if that property has vanished and the representative cannot account for what is proved to have reached him does the decree pierce to his own assets — and even then capped at the unaccounted amount. It punishes waste or non-accounting (a devastavit), not honest exhaustion of the estate.

How sub-sections (1) and (2) work as one body

(1) The estate is the fundthe decree — for money out of the deceased’s property — is executed by attaching & selling that estate. The representative answers with the estate, not himself.

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The bridge between themno estate remains in his hands — (1)’s fund is exhausted. Only this failure of (1) opens the door to (2).

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(2) The person, cappedif he cannot account for estate proved to have reached him, the decree runs against him personally — but only to that unaccounted extent.

So (2) is not a separate liability — it is the tail of (1). Sub-section (1) fixes the fund (the deceased’s property) and the first mode (attach & sell it); sub-section (2) then polices what became of that fund. The two are joined by one continuous measure of the estate: first the estate is realised (1), and only where it has vanished without a proper account does that same estate-value become a personal charge on the representative (2). Nothing he honestly exhausted, and nothing beyond the estate-value, is ever reached — (1) and (2) are two stages of a single, capped enforcement, not two independent ones.

The principle behind it

“Devastavit — de bonis propriis”

— A wasting of the estate; then, out of his own goods.

In § 52: A legal representative answers with the deceased’s estate (de bonis testatoris). But if he wastes it, or cannot account for assets proved to have reached him — a devastavit — he becomes personally liable, de bonis propriis, to that extent. Liability for misconduct, not for honest exhaustion of the estate.

How § 52 connects

§ 52 is the other face of representative-liability — here the decree starts against the representative. The live links open the provisions around it.

§ 50Legal representative (debtor dies later)The companion rule: a living debtor dies after the decree. § 52 covers a decree passed against the representative from the start.

§ 2(11)Legal representativeDefines the “legal representative” against whom § 52 operates.

§ 51Powers to enforce executionSupplies the modes — attachment & sale for (1); the full personal modes when (2) makes it “as if against him personally”.

§ 47Questions for the executing courtWhether estate reached him, and whether he duly applied it, are decided here, in execution.

Working through § 52:

1 Is the decree against a party as LR, for money out of the estate? → attach & sell the estate (1).

2 Is the estate gone, and can he not account for estate proved to have reached him? → he is liable personally (2).

3 How far? → only to the extent he failed to account — then as if a personal decree (§ 51 modes).

Part II · Execution · §§ 36–74 — § 51 · § 52 · § 53 (liability of ancestral property)