BEJOY KRISHNA Vs. ISWAR DAMODAR JEW

JUDGEMENT

(1.) This is an appeal by the defendant and it arises out of a suit instituted by one Ram Rakhal Ghosh as 'sebait' of three Deities for a declaration that the two items of properties described in schedules Ka and Kha of the plaint are 'debottar' properties and are not liable to be attached or sold in execution of a personal decree against the above 'sebait'.

(2.) The Trial Court decreed the plaintiff's suit in so far as it related to the property of Kha schedule of the plaint, but dismissed the claim in respect of the property of schedule Ka. The defendant has preferred this appeal from the above judgment and decree of the Trial Court. No cross objection has been filed by the plaintiffs in respect of the portion of the claim dismissed by the Trial Court.

(3.) The facts which have given rise to the present suit are almost undisputed and the decision of the suit turns mainly on a question of law. The defendant appellant obtained a personal decree against Ram Rakhal Ghose, the 'sebait' of the respondent Deities in Title Suit No. 45 of 1935 of the third court of the Subordinate Judge of Alipur. The decree was put to execution, and the interest of Ram Rakhal Ghose in a property described in Schelule Kha of the plaint was attached. This property goes by the name of Barabagan and it comprises a homestead with a 'pucca' building, a tank and adjoining lands. A claim case which was registered as claim case No. 43 of 1946 was filed on behalf of the Deities, but it was disallowed on 20-12-1947. Upon it the present title suit was instituted on behalf of the Deities according to the provisions of Order 21, Rule 63, Civil P. C.