ALLURU PAPPAYAMMA Vs. U V RAMA RAJU

JUDGEMENT

(1.) THESE two appeals arise out of one judgment passed by our learned brother misra J. in M. As. 76 and 77 of 1957 which arose out of an order passed by the district Judge of Jeypore in two miscellaneous cases, M. J. C. 36 of 1955 and M. J. C. 5 of 1956 in the course of an execution, proceeding (Execution case No, 6 of 1954 ).

(2.) THE respondent brought a suit for recovery of a sum of Rs. 4500/- together with interest (Suit No. 1 of 1952) against the appellant's husband Alluri Rangaraju (who was defendant No. 1) and who was the executant of the handnote. The appellant was impleaded as defendant 2 and her sons were impleaded as defendants 3 to 5 in that case. There was also a prayer that in respect of the properties described in the plaint schedule a charge might be created in favour of the plaintiff in respect of the sum found due from the defendants. From the judgment of the District Judge it appears that those properties were admitted to be in possession of the appellant (defendant No. 2), She claimed them to be her Stridhan property, though the creditor alleged, that some of them belonged in reality to her husband, and that they were taken benami in the name of the defendant no. 2. The learned District judge did not decide this question in that suit, but passed the following decree in favour of the creditor:

(3.) THE main point of law urged in support of these appeals is that both the Courts erroneously assumed that the objection was under Order 21, Rule 58 C. P. C. whereas in reality it was one under Section 47 C. P. C. and further that both the courts wrongly cast the burden on the appellant to establish her claim to the properties sought to be attached, notwithstanding the express mention in the decree that her liability in respect of the decretal amount would be limited to the assets of her husband in her hands. In my opinion, this contention must prevail. It is well settled that an objection, to execution filed by a judgment-debtor must be dealt with as an application under Section 47 C. P. C. and Order 21, Rule 58 C. P. C. has no application. It is true that by way of extra precaution mention was made of Order 21, Rule 58 C. P. C. but care was taken to describe the petition as also one under Section 47 C. P. C. Hut as the appellant was one of the judgment-debtors though to a limited extent the objection to the attachment of the properties should have been dealt with under Section 47 C. P. C.