Summary suit can proceed against legal representatives; asset-related objections go to execution, not maintainability.
A summary suit under Order XXXVII CPC was held maintainable against the legal representatives of a deceased debtor where the right to sue survived, and objections about the deceased's assets were treated as matters for execution, not maintainability. The Court also found no triable defence to the claim based on the loan transaction, interest payments and cheque, since the liability was supported by a liquidated sum and the pleaded objections did not defeat the claim. Leave to defend was therefore refused, and the suit was decreed for the principal amount with interest, subject to the usual execution protection available against inherited assets.
Issues: (i) Whether a summary suit under Order XXXVII of the Code of Civil Procedure, 1908 is maintainable against the legal representatives of a deceased debtor and whether their plea as to the deceased's assets can be raised at the stage of the suit. (ii) Whether the leave to defend disclosed any triable defence against the claim for principal and interest based on the loan transaction and cheque.
Issue (i): Whether a summary suit under Order XXXVII of the Code of Civil Procedure, 1908 is maintainable against the legal representatives of a deceased debtor and whether their plea as to the deceased's assets can be raised at the stage of the suit.
Analysis: The legal representatives were impleaded because the borrower had died before institution of the suit. The Court relied on earlier binding decisions holding that Order XXXVII does not exclude heirs and legal representatives from its ambit, provided the right to sue survives. The protection available to legal representatives is one relating to execution and not to the passing of a decree. Questions whether the deceased's assets came into their hands, and the extent to which any decree may be executed against such assets, were held to be matters for execution and not for the stage of maintainability.
Conclusion: The summary suit was held maintainable against the legal representatives, and the objection based on their status as heirs failed.
Issue (ii): Whether the leave to defend disclosed any triable defence against the claim for principal and interest based on the loan transaction and cheque.
Analysis: The loan transaction, the part-payments of interest, and the issuance of a cheque for the principal amount were not disputed in substance. The pleading specified the principal amount and the interest separately and matched the instrument relied upon. The Court held that the suit was based on a liquidated sum supported by a financial instrument and that the objection that the suit amount did not exactly mirror the cheque amount was untenable. The limitation objection was also rejected on the facts noted by the Court. No triable or valid defence was disclosed.
Conclusion: The leave to defend was rejected and the suit was decreed for the principal amount with interest at 6% per annum from 26 December 2017.
Final Conclusion: The legal representatives remained liable to face the suit, the defence was found unmeritorious, and a money decree was passed in favour of the claimant with clarification that execution against assets would remain governed by the protection available under Section 52 of the Code of Civil Procedure, 1908.
Ratio Decidendi: A summary suit may be maintained against the legal representatives of a deceased debtor where the right to sue survives, and objections concerning the deceased's assets pertain to execution rather than to the maintainability of the suit or the passing of a decree.
TaxTMI 
AI Drafter ✕
TaxTMI 
TaxTMI 
