2024 INSC 159 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.7768-7769 OF 2023

VINAYAK PURSHOTTAM DUBE (DECEASED),

THROUGH LRs …APPELLANT(S)
VERSUS

JAYASHREE PADAMKAR BHAT

& OTHERS …RESPONDENT(S)

JUDGMENT

NAGARATHNA, J.

These appeals have been filed by the legal representatives of

the opposite party-sole proprietor against the common final

judgment and order dated 02.05.2018 passed by the National

Consumer Disputes Redressal Commission (hereinafter referred to

as “NCDRC”) in Review Application No.26 of 2017 in Review

Petition No.3283 of 2008 and Review Application No.27 of 2017 in

Review Petition No.2794 of 2008.

The NCDRC vide the impugned order dismissed the review

Signature Not Verified

Digitally signed by
NEETA SAPRA
Date: 2024.03.02
14:40:56 IST
Reason:

applications while affirming its earlier order dated 31.05.2016

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passed in review petition with reference to the order dated

03.01.2017 passed by this Court in Special Leave Petition (Civil)…

CC Nos.24515-24516 of 2016 granting liberty to the appellants to

resort to remedy of review before the NCDRC.

2. The brief facts giving rise to the present appeal are as follows:

2.1 The appellants herein are the legal heirs of the original

opposite party in the consumer complaint before the District

Forum. All the respondents herein are the complainants.

2.2 For the sake of convenience, the parties shall be referred to

as complainants and opposite party.

2.3 The complainants, Jayashree Padmakar and others, owners

of property CTS Nos.1465/1 and 1465/2, 'C' Ward, Kolhapur, had

entered into a Development Agreement dated 30.07.1996 with the

opposite party. According to the agreement, the complainants were

entitled to receive eight residential flats and Rs.6,50,000/- as

consideration. Allegedly, the opposite party failed to fulfill the

payment obligations, resulting in payment of a balance amount

and accruing interest at 18% per annum with effect from

01.04.1997. The complainants alleged breaches of the agreement,

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including deviations from sanctioned plan, non-construction of a

compound wall impacting parking and issues regarding access

and unauthorized constructions beyond sanctioned plan,

subsequently sold to third parties. They also noted defects in the

building construction, such as cracks, in the building, terrace

work being not completed and the absence of provision for

electricity meters. Despite notices issued by the complainants, the

opposite party denied the allegations asserting that the

complainants owed them Rs.8,60,000/- for construction and

amenities.

2.4 Seeking a resolution of the ongoing breaches under the

Consumer Protection Act, the complainants pursued their legal

recourse to address the deadlock by filing Complaint No.184 of

2005 before the District Consumer Forum, Kolhapur. Their

prayers for relief were several: they demanded payment of

outstanding dues inclusive of interest; reimbursement of expenses

incurred and compensation for the mental distress caused to

them. Additionally, they sought structural rectification,

emphasizing on the removal of unauthorized constructions;

rectification of construction defects; completion of pending work

and the provision of essential amenities as initially agreed upon.

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2.5 In his version, the original opposite party disputed the

existence of any consumer relationship, denied breaches and

argued for the resolution of contractual disputes through the civil

court. The opposite party claimed that the complaint was time-

barred and sought its dismissal with compensatory costs of

Rs.10,000/-.

2.6 The District Consumer Forum at Kolhapur, vide order dated

16.10.2006, on perusal of various supporting documents,

including the Development Agreement, building plans, notices,

replies, certificates, estimates, receipts and affidavits partly

allowed the Consumer Complaint No.184 of 2005 filed against the

opposite party. The District Forum observed that as per the

Development Agreement between the parties, the transaction

between the parties was not one of sale and purchase of property

but of development of property. Since the services regarding

construction are covered by the Consumer Protection Act, the

dispute was held to be a consumer dispute. Further, the District

Forum refused to take into consideration the points raised by the

complainants regarding defects in construction, amenities and

facilities due to lack of evidence provided in that regard. However,

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the opposite party was found to be liable to pay to the

complainants an amount of Rs. l,65,000/- along with interest at

the rate of 18% per annum with effect from 01.05.1997 till

payment; an amount of Rs. 1,85,000/- along with interest at the

rate of 18% per annum with effect from 31.08.1997 till payment;

and an amount of Rs.1,50,000/- at the time of conveyance.

2.7 Both the parties challenged the order of the District Forum

before the Consumer Disputes Redressal Commission,

Maharashtra State, Mumbai (for short, “the State Commission”).

The State Commission, vide its common judgment dated

08.04.2008 in First Appeal Nos.2570 of 2006 and 1115 of 2007,

partly modified the order of the District Forum by setting aside the

directions to pay Rs. 1.85 lakhs and Rs. 1.65 lakhs as the said

claims were held to be time-barred but upheld the direction to pay

Rs. 1.5 lakhs. However, the State Commission placed reliance on

some other clauses of the Development Agreement such as clause

4(k), to hold that the building was incomplete and that the opposite

party was liable to get the construction of the compound wall and

give separate access in terms of Schedule-II of the Development

Agreement. The opposite party was further directed to obtain and

handover the Completion Certificate to the complainants; to

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execute the Conveyance Deed and to give electricity connections to

the complainants for which they had already paid Rs.15,000/- to

the developer-opposite party.

2.8 The complainants as well as the opposite party approached

the NCDRC by filing Revision Petition Nos.3283 of 2008 and 2794

of 2008. During the pendency of the petition before the NCDRC,

the original opposite party-Vinayak Purushottam Dube died and

his legal representatives i.e., his wife and two sons were brought

on record, who are the appellants before this Court. The NCDRC,

vide order dated 31.05.2016, again partly modified the order of the

State Commission. The NCDRC disagreed with the finding and

conclusion of the State Commission with respect to the time-

barred transaction of Rs. 1.85 lakhs and Rs. 1.65 lakhs, by

observing that the limitation of the said claims had to be adjudged

by looking at the transaction between the parties as a whole, which

established a continuous cause of action in the matter. The

NCDRC upheld the directions given by the State Commission with

respect to the Completion Certificate; Conveyance Deed; Electricity

Connection, etc., since the developer did not challenge any part of

those directions as the same were in accordance with the

Development Agreement. In other words, the NCDRC upheld the

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order of payment of 1.65 lakhs and 1.85 lakhs along with interest

as directed by the District Forum, and also upheld the slew of

directions issued by the State Commission to the developer-

opposite party.

3. The appellants-opposite party thereafter approached this

Court by preferring Special Leave Petition (Civil)…. CC Nos.24515-

24516 of 2016 to challenge the order of the NCDRC dated

31.05.2016 in Revision Petition Nos.3283 of 2008 and 2794 of

2008. This Court, vide order dated 03.01.2017, refused to interfere

with the view taken by the NCDRC and disposed of the same by

granting liberty to the appellants-opposite party herein to resort to

the remedy of review before the National Commission.

4. Thereafter, the appellants-opposite party filed Review

Application No.26 of 2017 and the complainants filed Review

Application No.27 of 2017, both before the NCDRC and the order

of review proceeding is assailed in the present case. The NCDRC,

vide order dated 02.05.2018, upheld its earlier findings on the

question of limitation, status of complainants as consumers and

the relief being in excess of the payment made by the

complainants. Further, NCDRC refused to accept the contention of

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the appellants-opposite party that after the death of the original

owner, the legal representatives are not accountable for the

liabilities under the agreement. In paragraph 12 of the order, the

NCDRC held that the death of a developer has no effect upon the

obligations of the developer under the Development Agreement and

the same have to be executed by the legal heirs of the developer.

The relevant part of the said paragraph 12 is extracted as under:

“12. Further, we have no reason to agree with the

contention raised by the review applicant that after the
death of the original owner, the legal representatives are
not accountable for the liabilities under the agreement. In
the eventuality of death of the developer, it cannot be
stated that various clauses of the development agreement
between the parties becomes redundant or the
complainant is not entitled to seek execution of the
provisions of the development agreement. Such execution
has to be made by the legal heirs of the developer only.”

5. The legal representatives of the opposite party being

aggrieved by the aforesaid reasoning of the NCDRC have preferred

these appeals.

6. We have heard learned counsel Sri Aniruddha Deshmukh for

the appellants and learned counsel Sri Abhishek Yadav for the

respondents and perused the material on record.

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7. The controversy in these appeals is in a very narrow compass.

No doubt, the complainants succeeded before the District Forum,

the State Commission as well as the NCDRC. During the pendency

of the revision preferred by the original opposite party before the

NCDRC, the original opposite party died. His legal representatives

i.e. his widow and two sons were brought on record. In fact, the

complainants also had preferred their Revision Petition. The

NCDRC reasoned that the legal representatives of the opposite

party were liable both with regard to the monetary payments that

the original opposite party was directed to pay and also liable to

comply with the other directions issued by the District Forum as

modified by the State Commission and thereafter modified by the

NCDRC.

8. Learned counsel for the appellants submitted that the

appellants as the legal representatives of the deceased opposite

party are willing to make the payment as directed. But as far as

the other set of the directions are concerned, it is not permissible

for them to comply with them inasmuch as the said directions were

issued by the District Forum as well as the State Commission

personally against the opposite party who is since deceased. Those

directions are with regard to construction of compound wall so as

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to give separate access in terms of Schedule II of the Development

Agreement; to obtain and handover completion certificate to the

complainants-respondents; to execute the conveyance deed and to

give electricity connection and such other directions.

9. Learned counsel for the appellants contended that the

aforesaid directions cannot now be complied with by the legal

representatives of the deceased - original opposite party inasmuch

as those were personal directions as issued against the original

opposite party. He contended that the original opposite party was

having the proprietorship concern and therefore, the estate of the

deceased proprietor would be liable insofar as the satisfaction of

the compensatory payments only but not for complying the other

directions issued which cannot now fall on his legal

representatives to comply. It was contended that the original

opposite party had skills and expertise to comply with the said

directions as a developer but on his demise, his legal

representatives, namely, his widow and two sons, cannot be

compelled to carry out those directions as they neither possess the

necessary skills nor expertise and further, they are not continuing

the proprietorship concern of the original opposite party which has

now been wound up on the demise of the sole proprietor. Therefore,

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learned counsel for the appellants-opposite party contended that

the various clauses of the Development Agreement which had

placed duties and obligations on the original opposite party, who

is since deceased, cannot now be enforced against and performed

by his legal representatives or heirs.

10. Per contra, learned counsel for the complainants–

respondents submitted that no doubt the legal representatives of

the original opposite party would comply with the directions for

payments from out of the estate of the deceased opposite party but

the complainants would be left high and dry insofar as the other

obligations which had to be discharged by the opposite party and

therefore, the NCDRC was justified in directing the legal

representatives of the deceased opposite party to take steps for also

complying with those directions.

11. Having heard learned counsel for the respective parties, we

note that admittedly the original opposite party was in the

business of real estate and as a developer, had entered into the

Development Agreement dated 30.07.1996 with the complainants.

According to the complainants-respondents herein, they were

entitled to eight residential flats and there were various other

11
terms and conditions of the said Development Agreement which

imposed an obligation on the original opposite party.

12. The question is: what would happen to the obligations

imposed personally on the original opposite party on his demise?

No doubt, the estate of the original opposite party would be liable

for any monetary decree or directions for payment issued in the

present case. However, what about the obligations which had to be

performed under the Development Agreement such as certain

construction to be made and certain approvals etc. to be obtained

by him on completion of the construction. Can the legal

representatives be liable to comply with those obligations under

the Development Agreement on the demise of the original opposite

party?

13. In this regard, it is necessary to discuss the jurisprudential

status of a proprietary concern. In a report of the Insolvency Law

Committee submitted in February, 2020, the definition of

‘Proprietorship Firms’ reads as under:

“2.DEFINITION OF ‘PROPRIETORSHIP FIRMS’

2.2 Proprietorship firms are businesses that are
owned, managed and controlled by one person. They
are the most common form of businesses in India and
are based in unlimited liability of the owner.

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 Legally, a proprietorship is not a separate legal entity
and is merely the name under which a proprietor
carries on business. [Raghu Lakshminarayanan vs.
Fine Tubes (2007) 5 SCC 103.]
Due to this, proprietorships are usually not defined in
statutes. Though some statutes define
proprietorships, such definition is limited to the
context of the statute. For example, Section 2 (haa) of
the Chartered Accountants Act, 1949 defined a ‘sole
proprietorship’ as “an individual who engages himself
in practice of accountancy or engages in services…”.
Notably, ‘proprietorship firms’ have also not been
statutorily defined in many other jurisdictions.”
[Source: Report of the Insolvency Law Committee,
Page No.117-118, Government of India (Ministry of
Corporate Affairs, February, 2020).]

14. According to Salmond, there are five important

characteristics of a legal right:

1. It is vested in a person who may be distinguished as the

owner of the right, the subject of it, the person entitled, or

the person of inherence.

2. It avails against a person, upon whom lies the correlative

duty. He may be distinguished as the person bound, or as

the subject of duty, or as the person of incidence.

3. It obliges the person bound to an act or omission in favour

of the person entitled. This may be termed the content of

the right.

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 4. The act or omission relates to something (in the widest

sense of that word), which may be termed the object or

subject matter of the right.

5. Every legal right has a title, that is to say, certain facts or

events by reason of which the right has become vested in

its owner.

[Source: PJ Fitzgerald, Salmond on Jurisprudence, Page

No.221 (Universal Law Publishing Co. Pvt. Ltd., 12th
Edition, 1966)]

15. Salmond also believed that no right can exist without a

corresponding duty. Every right or duty involves a bond of legal

obligation by which two or more persons are bound together. Thus,

there can be no duty unless there is someone to whom it is due;

there can be no right unless there is someone from whom it is

claimed; and there can be no wrong unless there is someone who

is wronged, that is to say, someone whose right has been violated.

This is also called as vinculum juris which means “a bond of the

law”. It is a tie that legally binds one person to another. [Source:

PJ Fitzgerald, Salmond on Jurisprudence, Page No.220 (Universal

Law Publishing Co. Pvt. Ltd., 12th Edition, 1966)].

16. Salmond’s classification of proprietary and personal rights

are encapsulated as under:

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 Proprietary Rights Personal Rights
1 Proprietary rights means a Personal rights are rights
person’s right in relation to arising out of any contractual
his own property. Proprietary obligation or rights that
rights have some economic or relate to status.
monetary value.
2 Proprietary rights are Personal rights are not
valuable. valuable in monetary terms.
3 Proprietary rights are not Personal rights are the
residual in character. residuary rights which
remain after proprietary
rights have been subtracted.
4 Proprietary rights are Personal rights are not
transferable. transferable.
5 Proprietary rights are the Personal rights are merely
elements of wealth for man. elements of his well-being.
6 Proprietary rights possess not Personal rights possess
merely judicial but also merely judicial importance.
economic importance.

[Source: PJ Fitzgerald, Salmond on Jurisprudence, Page No.238

(Universal Law Publishing Co. Pvt. Ltd., 12th Edition, 1966)].

17. Salmond’s classification of inheritable and uninheritable

rights is stated as under:

Inheritable Rights Uninheritable Rights

A right is inheritable if it A right is uninheritable if it dies
survives the owner. with the owner.

[Source: PJ Fitzgerald, Salmond on Jurisprudence, Page Nos.415 &

442 (Universal Law Publishing Co. Pvt. Ltd., 12th Edition, 1966)].

18. On a reading of the above, it is clear, when it comes to

personal rights (as opposed to a proprietary rights) are rights

arising out of any contractual obligations or the rights that relate

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to status. Such personal rights are not transferable and also not

inheritable. Correspondingly, Section 306 of the Indian Succession

Act, 1925 (for short, “1925 Act”) applies the maxim “actio

personalis moritur cum persona” (a personal right of action dies

with the person) which is limited to a certain class of cases and

would apply when the right litigated is not heritable. By the same

logic, a decree holder cannot enforce the same against the legal

representatives of a deceased judgment debtor unless the same

survives as against his legal representatives. Section 306 of the

1925 Act reads as under:

“Section 306 – Demands and rights of action of or

against deceased survive to and against executor
or administrator.—
All demands whatsoever and all rights to prosecute or
defend any action or special proceeding existing
in favor of or against a person at the time of his
decease, survive to and against his executors or
administrators; except causes of action for
defamation, assault, as defined in the Indian Penal
Code, 1860 (45 of 1860) or other personal injuries not
causing the death of the party; and except also cases
where, after the death of the party, the relief sought
could not be enjoyed or granting it would be
nugatory.”

19. We may also advert to Sections 37 and 40 of the Indian

Contract Act, 1872, which read as under:-

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 “37. Obligation of parties to contracts.—The parties to
a contract must either perform, or offer to perform, their
respective promises, unless such performance is
dispensed with or excused under the provisions of this
Act, or of any other law.
Promises bind the representatives of the promisors in case
of the death of such promisors before performance, unless
a contrary intention appears from the contract.
x x x
40.Person by whom promise is to be performed.—If it
appears from the nature of the case that it was the
intention of the parties to any contract that any promise
contained in it should be performed by the promisor
himself, such promise must be performed by the promisor.
In other cases, the promisor or his representatives may
employ a competent person to perform it.”

20. Section 37 of the aforesaid Act states that a promise made by

a promisor is binding on his representatives in case of his/her

death, unless a contrary intention appears from the contract. Legal

representatives are liable for the debts of their predecessor, but

their liability is limited to the extent of the estate of the deceased

inherited by them. Therefore, the representatives of a promisor are

bound to perform the promisor’s contract to the extent of the

assets of the deceased falling in their hands. But they are not

personally liable under the contracts of the deceased and are also

not liable for personal contracts of the deceased. Therefore, when

personal considerations are the basis of a contract they come to

17
an end on the death of either party, unless there is a stipulation

express or implied to the contrary. This is especially so when the

contracts involve exercise of special skills such as expressed in

Section 40 of the Indian Contract Act, 1872.

21. Thus, a contract can be performed vicariously by the legal

representatives of the promisor depending upon the subject matter

of the contract and the nature of performance that was stipulated

thereto. But a contract involving exercise of individual’s skills or

expertise of the promisor or which depends upon his/her personal

qualification or competency, the promisor has to perform the

contract by himself and not by his/her representatives. A contract

of service is also personal to the promisor. This is because when a

person contracts with another to work or to perform service, it is

on the basis of the individual’s skills, competency or other

qualifications of the promisor and in circumstances such as the

death of the promisor he is discharged from the contract.

22. Correspondingly, duties or obligations which are personal in

nature cannot be transmitted from a person who had to personally

discharge those duties, on his demise, to his legal representatives.

Just as a right is uninheritable and the right personal to him dies

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with the owner of the right, similarly, a duty cannot be transferred

to the legal representatives of a deceased if the same is personal in

nature.

In Raghu Lakshminarayanan vs. Fine Tubes, (2007) 5

SCC 103, while distinguishing a juristic person such as a

company, a partnership or an association of persons from a

proprietary concern, it was observed that a person who carries on

business in the name of a business concern, but he being a

proprietor thereof, would be solely responsible for conduct of its

affairs. A proprietary concern is not a company. Further, a

proprietary concern is only the business name in which the

proprietor of the business carries on the business. A suit by or

against a proprietary concern is by or against the proprietor of the

business. In the event of the death of the proprietor of a proprietary

concern, it is the legal representatives of the proprietor who alone

can sue or be sued in respect of the dealings of the proprietary

business which is by representing the estate of the deceased

proprietor. The real party who is being sued is the proprietor of the

said business. Therefore, if a proprietor had to carry on certain

obligations personally under a contract, the same cannot be

fastened on his legal representatives.

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23. Further, Section 2(11) of the Code of Civil Procedure, 1908

(for short, “CPC”) defines a “legal representative” to mean a person

who in law represents the estate of a deceased person, and

includes any person who intermeddles with the estate of the

deceased and where a party sues or is sued in a representative

character the person on whom the estate devolves on the death of

the party so suing or sued. Thus, the legal representatives of a

deceased are liable only to the extent of the estate which they

inherit.

In Custodian of Branches of Banco National Ultramarino

vs. Nalini Bai Naique, AIR 1989 SC 1589, it was observed that

the expression "legal representative" as defined in the CPC is

applicable to proceedings in a suit. It means a person who in law

represents the estate of a deceased person and includes any

person who intermeddles with the estate of the deceased and

where a party sues or is sued in a representative character the

person on whom the estate devolves on the death of the party so

suing or sued. The definition is inclusive in character and its scope

is wide as it is not confined to legal heirs only, instead, it stipulates

a person who may or may not be a heir, competent to inherit the

property of the deceased or he should represent the estate of the

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deceased person. It includes heirs as well as persons who

represent the estate even without title, either as executors or

administrators in possession of the estate of the deceased. All such

persons would be covered by the expression "legal representative".

If there are many heirs, those in possession bona fide, without

there being any fraud or collusion, are also entitled to represent

the estate of the deceased.

24. The aforesaid judgment refers to representation of an estate

of a deceased person which would devolve on his legal

representatives and where the decree has to be executed vis-à-vis

such an estate. In such a case, the heirs of the deceased judgment

debtor would be under a legal obligation to discharge their duties

to satisfy the decree or an order from the estate of a deceased.

But in the case of sole proprietorship, which is a common form

of business in India, when a legal obligation arises under a

contract which has to be discharged personally by the sole

proprietor, who is since deceased, had entered into the agreement,

such as, in the case of a Development Agreement in the instant

case, can such obligations be imposed on his legal representatives

or heirs who are not parties to the Development Agreement and

where the obligations under such an agreement per se cannot be

21
fulfilled inasmuch as they neither have the skills nor the expertise

to do so and those obligations depend purely on the skills and

expertise of the deceased sole proprietor? In other words, where

the decree or order is not against the estate of a deceased sole

proprietor but based on the skills and expertise of the sole

proprietor, we are of the view that in the latter case, the obligations

which had to be performed by the sole proprietor would come to

an end on his demise and the same cannot be imposed on his legal

heirs or representatives. We reiterate that such a position is

distinguished from a position where the estate of the deceased sole

proprietor would become liable to satisfy the decree in monetary

terms. This is because a proprietorship firm is not a separate legal

entity as compared to the proprietor and his estate would become

liable only to satisfy a decree or an order in monetary terms on his

demise.

In this context, the following terms of the Development

Agreement dated 30.07.1996 would clearly indicate that the

obligations on the opposite party were to be carried out personally

by him:

“NOW THIS AGREEMENT WINESSETH AND IS AGREED

BY AND BETWEEN THE PARTIES HERETO AS
FOLLOWS:

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 1.1 The owners hereby grant to the developer sole and
exclusive development rights in respect of the property
bearing C.S. No. C. 1465 situated in 'C' Ward, Laxmipuri
Kolhapur -416002 in the form of license to enter upon the
said property in the capacity of the licensee of the owners
for the sole purpose of developing the said property and
selling the offices/premises / shops to the extent and in
the manner stipulated hereafter and upon the terms and
conditions agreed by the between the parties hereto and
set out here below in this agreement. Subject to clause No.
2. the license hereby granted is irrevocable till the entire
property is developed and all the premises constructed
thereon are sold out. It is however, hereby expressly
understood that the right of entry granted under this
clause is for the sole purpose of developing the said
property selling all premises (except those to be allotted to
owners) including the shop/s basement/offices therein
and common restricted areas or facilities as the case may
be and such entry shall not be construed to mean that the
owners have placed the developer in legal or physical
possession of the said property.
x x x
16. The developer undertakes to comply with and carry out
all the legal and contractual obligations that may be
entered into for the construction of the buildings and for
the sale of the various premises in the said buildings. The
developer further undertakes to indemnify and keep
indemnified the owners from and against any action either
civil or criminal suit proceedings, damages, penalties or
any other similar actions which may be initiated, made or
ledged by any person or persons by reason of the failure of
the developer to comply with, carry out or perform any
such legal and contractual obligations.”

25. In this regard, it would be useful to illustrate that in a general

sense, an injunction is a judicial mandate operating in personam

by which upon certain established principles of equity, a party is

required to do or refrain from doing a particular thing. On the other

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hand, a direction to pay money either by way of final or interim

order is not considered to be an injunction. An order of injunction

is normally issued against a named person and is addressed to the

defendant personally and on his demise the cause of action would

come to an end insofar as such a person who is since deceased

even if it relates to a proprietary right unless his legal

representatives are also causing a threat in which case the cause

of action would continue vis-à-vis the legal representatives also.

26. Therefore, if the estate of the deceased becomes liable then

the legal representatives who in law represent the estate of a

deceased person or any person who intermeddles with the estate

of the deceased and where a party sues or is sued in a

representative character, the person on whom the estate devolves

on the death of the party so suing or sued is liable to the extent

the estate has devolved. Hence, what is crucial is that the estate of

a deceased person which becomes liable and the legal

representatives must discharge their liability to a decree holder or

a person who has been granted an order to recover from the estate

of the deceased which they would represent and not beyond it.

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27. But in the case of a personal obligation imposed on a person

under the contract and on the demise of such person, his estate

does not become liable and therefore, the legal representatives who

represent the estate of a deceased would obviously not be liable

and cannot be directed to discharge the contractual obligations of

the deceased.

28. In Ajmera Housing Corporation vs. Amrit M. Patel (Dead)

through LRs, (1998) 6 SCC 500, this Court observed that the

defendants in the said case had no privity of contract with the

plaintiff therein and the contract had been entered into on the

basis of the skills and capacity of the party to perform under the

contract and the rights and duties were also personal to the party

who had to discharge the obligations under the contract. In the

circumstances, it was observed that the legal representatives of the

builder under the contract had neither the capacity nor the special

skills to discharge the obligations of the deceased.

29. This position is also clear on a reading of Section 50 of the

CPC which states as under:

“Section.50:- (1) Where a judgment-debtor dies

before the decree has been fully satisfied, the holder
of the decree may apply to the Court which passed it

25
 to execute the same against the legal representative of
the deceased.

(2) Where the decree is executed against such legal

representative, he shall be liable only to the extent of
the property of the deceased which has come to his
hands and has not been duly disposed of; and, for the
purpose of ascertaining such liability, the Court
executing the decree may, of its own motion or on the
application of the decree-holder, compel such legal
representative to produce such accounts as it thinks
fit.”

30. Thus, any decree which is relatable to the extent of the

property of the deceased which has come to the hands of the legal

representatives and has not been duly disposed of, the same would

be liable for execution by a decree holder so as to compel the legal

representatives to satisfy the decree. In this context, even a decree

for preventive injunction can also be executed against the legal

representatives of the deceased judgment-debtor if such a decree

is in relation to the property or runs with the property if there is a

threat from such legal representatives.

31. In view of the aforesaid discussion, we hold that the legal

representatives of the deceased opposite party-appellants herein

are not liable to discharge the obligation which had to be

discharged by the deceased opposite party in his personal capacity

and hence that portion of the impugned orders of the NCDRC,

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State Commission and District Forum are set aside. Needless to

observe that the direction for payments shall be made by the legal

representatives from the estate of the deceased opposite party if

not already satisfied.

32. The appeals are allowed in the aforesaid terms.

33. Parties to bear their respective costs.

………………………...J.
[B.V. NAGARATHNA]

…………………………J.
[UJJAL BHUYAN]

NEW DELHI;
MARCH 01, 2024.

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