JAGDAMBA MISIR Vs. RAM JIT SINGH

JUDGEMENT

(1.) THIS is a decree-holder's appeal arising out of an objection under Section 47, Civil P. C.

(2.) THE appellant obtained a decree for money from the Judge, Small Cause Court, Banaras, in 1937. The judgment-debtor respondent was an agriculturist. While passing the decree, the learned Judge, under the provisions of Section 3, Agriculturists' Relief Act, declared that one-half share belonging to the judgment-debtor, in the family properties which were specified, was charged with the payment of the decretal amount and granted instalments. The judgment-debtor died and his brother, who is the present respondent, succeeded to the property by right of survivorship, he being a member of a joint Hindu family with the deceased.

(3.) NO instalments having been paid, the decree-holder, in the year 1941, after having got the decree transferred to the Court of the Munsif for the purposes of execution, applied for execution of the decree by attachment and sale of certain property including the property charged under the decree. Ranjit Singh respondent objected that the property was joint Hindu family property, that ho had succeeded to it by right of survivorship, and that it could not be sold in execution of the decree, and that, in any case, a regular suit for enforcing the charge should be brought, as the property could not be sold under the provisions of Order 34, Rules 14 and 15 without obtaining a decree under Order 34, Rules 4 and 5, Civil P. C. Both the Courts below have allowed the objection and dismissed the execution application.