VIDHESHWAR PATHAK Vs. BUDHIRAM BARAI

JUDGEMENT

(1.) This second appeal came up for hearing before a learned single Judge who by his order dated the 27th September, 1957 referred it to a bench, because an important question of law arose in the case.

(2.) Briefly stated, the fads are that the appellant decree-holder obtained a simple money decree for Rs. 610 besides costs and future interest against the assets of Smt. Kusma Kunwar deceased in the hands of Hira, Gopal and Budhiram, some time in 1956. This decree was. put in execution and a house was attached stating that the house was the asset of Kusma Kunwar. Budhiram respondent filed an objection stating that the house did not belong to Kusma Kunwar nor was it a part of the assets left by her. This objection has found favour with both the Courts below. It has been held that the house did not belong to Kusma Kunwar and was not liable to attachment and sale. It was against these concurrent findings of fact that the present appeal was filed.

(3.) It appears that the decree-holder relied upon three copies of statements made by Kusma Kunwar, Gulab and Budhiram objector in earlier proceedings. The Courts below rejected the statements of Kusma Kunwar and Gulab because they were inconsistent and did not prove that Kusma Kunwar was the owner. The: statement of Budhiram objector was also not relied upon by the lower appellate court on the ground that Budhiram having entered the witness-box, the statement was not put to him and consequently it could not be; relied upon. This view of the learned Judge has been challenged in this appeal.