KISHAN SINGH Vs. BABU SINGH

JUDGEMENT

(1.) THIS second execution decree appeal is directed against the judg ment and decree of Temporary Civil and Sessions Judge, Mathura. Respondent Dec ree-holder Babu Singh had advanced some loan to Smt. Padam Kuer and on her death a decree was obtained against the assets of Smt. Padam Kuer deceased, in the hands of respondent Kishan Singh. In execution of the decree the decree-holder respondent got the bhumidhari plots attached. Appellant Kishan Singh then filed an objection and denied that the plots were the assets of the deceased Padam Kuer. The trial Court al lowed the objection but in appeal the lower appellate Court allowed the appeal and dis missed the objection holding that the pro perty was liable to be attached as shown in the decree as the assets of Smt. Padam Kuer, hence this second execution decree appeal.

(2.) IT is not disputed that the plots originally belonged to Doongar Singh, hus band of Smt. Padam Kuer. On the death of Doongar Singh succession was claimed by Kishan Singh as the adopted son of Doon gar Singh. Smt. Padam Kuer on the other hand claimed succession denying that Kishan Singh was the adopted son of Doongar Singh. A suit under Section 59 of the U. P. Tenan cy Act for a declaration was also filed by Kishan Singh. That suit was finally decreed by the learned Commissioner and the second appeal was dismissed in the year 1954 with the result that the finding that Kishan Singh was the adopted son became final. Some time afterwards the village was notified under the Consolidation of Holdings Act and the dispute again arose in proceedings under the said Act. The Assistant Director of Consolidation held that Padam Kuer had been in possession of the plots in dispute and had acquired bhumidhari sanads. The Assistant Director of Consolidation consequently upheld the objection of Padam Kuer and rejected the claim of Kishan Singh on the basis of possession and acquisition of bhumidhari sanad. A writ petition against the order of the Assistant Director of Con solidation was dismissed by this Court on 3-11-58 (Hon'ble James, J.). Smt. Padam Kuer died sometime after 1959, when the decree-holder in execution of his decree sought to execute the decree against the bhumidhari plots in the hands of Kishan Singh as assets of Smt. Padam Kuer, Kishan Singh filed objection under Section 47 of the Civil Procedure Code. The executing Court allowed the objection. In appeal the objec tion was dismissed by the lowei appellate Court

(3.) THE contention of the learned counsel for the appellant on the facts of the present case will also not entitle him to con tend that the property in his hand is not the assets of the deceased Padam Kuer. Sec tion 172 (2) (b) reads as under:-