BIBI AMAR KAUR Vs. SHIV KARAN

JUDGEMENT

(1.) THIS Letters Patent Appeal filed by Bibi Amar Kaur is directed against the judgment and decree of learned single Judge whereby he dismissed Regular second Appeal filed by the appellant against the judgment and decree of additional District Judge, Ferozepore, affirming on appeal the decision of the trial court by which the suit of the appellant against Shiv Karan and other defendant-respondents was dismissed.

(2.) THE present appeal is a sequel to a long drawn litigation, the brief history of which is as under:

(3.) IN August, 1932 Lal Singh defendant, who is husband of the plaintiff-appellant, made a gift of land measuring 1928 Bighas and 7 Biswas, situated in village sukhchain, district Ferozepore, in favour of the appellant. The gift was subject to a charge for payment of maintenance amount which had been decreed in favour of shrimati Pritam Kaur who was the wife of the brother of Lal Singh. Mutation on the basis of the gift was sanctioned in favour of the appellant on 13th of may, 1934. Firm Behari Lal Lashkari Mal obtained a decree for the recovery of Rs. 14,000 with future interest and costs against Lal Singh defendant on 27th of February, 1935. One Bhana Ram also obtained a decree for recovery of Rs. 20,000, and Rs. 1,164 as costs against Lal Singh on 17th of March, 1936. Bhana Ram filed an application for execution of his decree on 4th of July, 1936 and got the land situated in village sukhchain, which had been gifted by Lal Singh in favour of the appellant, attached on 30th of October, 1936. The papers were then forwarded to the Collector for auction of the attached property in accordance with the notification issued under s. 68 of the Code of Civil Procedure. Firm Behari Lal Lashkari Mal applied for execution of its decree against Lal Singh on 18th of July, 1936 and made a prayer in that application for ratable distribution of the amount realized in Bhana Ram's execution application. The appellant filed objections on 23rd of February, 1937 under O. 21, R. 58 of the Code of Civil procedure in Bhana Ram's execution application claiming that the land attached belonged to her and as such was not liable to attachment and sale in execution of the decree against Lal Singh. The above objections were, however, dismissed the same day on the ground of being belated. The appellant there upon filed suit on 10th of November, 1937 under O. 21, R. 63 of the Code of Civil Procedure for a declaration that she was the owner of land measuring 1237 Kanals and 7 Marlas, situated in village Sukhchain, because of the gift made in her favour and as such the aforesaid land was not liable to attachment and sale in execution of the decree against Lal Singh. In the alternative it was prayed that she had a charge over the land to the extent of Rs. 4,410 which amount she had deposited in the Court of the Senior Subordinate Judge, Ferozepore, towards payment of the charge of shrimati Pritam Kaur. Bhana Ram and other creditors of Lal Singh including Firm behari Lal Lashkari Mal were impleaded as defendants in the above suit. The suit was resisted by those creditors and was dismissed by Shri Mani Ram Khanna, subordinate Judge, Ferozepore, on 15th of November, 1938, because the plaintiff failed to pay the costs of adjournment and produce any evidence. Lal Singh defendant was declared insolvent on an application filed by Firm Behari Lal lashkari Mal by Insolvency Judge, Ferozepore, as per order, dated 15th of July, 1938. Lal Singh filed an appeal against that order and the same was accepted by mr. S. A. Rehman, District Judge, Ferozepore, on 22nd of November, 1938 on the ground that Lal Singh could not be held to be unable to meet his liabilities on the strength of his property. The adjudication of Lal Singh as insolvent was, accordingly, annulled.