SRIMATI KRISHNA KUNWAR Vs. SRIMATI PARBATI AND OTHERS

JUDGEMENT

(1.) The appellant Krishna Kunwar, judgment debtor, has come up in second appeal against the order of the District Judge of Lucknow dismissing her objection under Sec. 47 of the Civil Procedure Code.

(2.) It appears that the respondent Shrimati Parbati obtained a decree for money against three persons. Of the three judgment-debtors Mahant Har Krishna Das was personally liable under the decree while the other two judgment-debtors Bhaiya Satgur Prasad and Shrimati Sunder Dei were made liable for satisfaction of the decree to the extent of the assets of the late Mahant Har Narain Das in their hands. After the decree Sunder Dei died and her daughter Shrimati Krishna Kunwar appellant was brought on record in place of her deceased mother.

(3.) The decree-holder sought to execute the decree by making an application in Dec., 1947. It appears that the decree was passed on the 1st. June, 1935. In the same year the Encumbered Estates Act came into force and one of the judgment-debtors, namely Satgur Prasad, applied under Sec. 4 of the Encumbered Estates Act for liquidation of his debts. An order was passed by the Collector under Sec. 6 of the Encumbered Estates Act on the 20th Sept., 1935. For some reasons with which we are not concerned in this appeal the proceedings under the Encumbered Estates Act were quashed under Sec. 20 of the Act by an order passed on the 25th Aug., 1944. When the present application was made in Dec., 1947, the objector raised two objections to the execution of the decree. The first was that the decree could not be put into execution by reasons of the 12 years rule mentioned in Sec. 48 of the Civil Procedure Code. The second objection was that the property attached in execution of the decree was the personal property of the objector and therefore it was not liable for attachment and sale in execution of the decree which was against the assets of Mahant Har Narain Das. As regards the second objection that the property attached in the decree was the personal property of the appellant, the two Courts below have held that the objector had failed to establish that it was her personal and separate property. In other words, the finding of the two Courts below is that the property attached in the suit was liable for satisfaction of the amount claimed under the decree in suit. The trial court further held that the appellant had taken away sufficient property belonging to Mahant Har Narain Das and therefore the property in the case was in any case liable to be attached in satisfaction of the decree. This was a finding on a question of fact and in second appeal this finding cannot be disturbed, nor has any attempt been made to show that the decision of the two courts below was incorrect on this part of the objection. The main objection of the appellant in the two Courts below was that under Sec. 48 of the Civil Procedure Code the time limit for execution of a decree has been fixed as 12 years and since 12 years had elapsed at the time when the execution was sought, the decree could not be executed. This plea has been rejected by the two Courts below and after considering the arguments advanced by the learned Counsel for the appellant I am satisfied that this contention has no substance.