BINDRA BAN Vs. FIRM CHET RAM BUDH RAM

JUDGEMENT

(1.) These Execution Second Appeals have arisen in the following circumstances. On 1st of October, 1948 Joint Hindu Family firm known as Chet Ram Budh Ram filed a suit against three sons of Ram Sarup for the recovery of Rs. 3,000 on the basis of a balance which, according to the plaintiff firm, had been struck by Ram Sarup on 1st of October, 1945. The suit was decreed by the then Senior Subordinate Judge on 16th June, 1951, for the amount claimed by the plaintiff with costs.

(2.) Later on, the decree-holder firm applied for execution of the decree by attachment and sale of a residential house belonging to the judgment-debtors situated in Pachgaon. The house was duly attached but the report of the attaching bailiff dated 21st of September, 1952, shows that at the time of attachment Niranjan Lal and Bindra Ban judgment-debtors were occupying the house. This report of the bailiff is witnesses by the decree-holder and is attested by Gopal Chawkidar and one Lachhman. The judgment-debtors filed objections to the attachment of the house on the ground that it was exempt from attachment and sale under section 60(1) (ccc) Civil Procedure Code, as they were in occupation of the residential house at the time of attachment. Niranjan Lal judgment-debtor filed another objection peculiar to himself and that was to the effect that the house in dispute originally belonged to two brothers Ram Sarup and Ujagar Mal and that the decree could be executed only against the estate of Ram Sarup and not that of Ujagar Mal. Niranjan Lal further pleaded that he was the adopted son of Ujagar Mal and for this reason the half share in the house belonging to Ujagar Mal was not liable to attachment and sale in execution of a decree obtained against Ram Sarup's estate. The executing Court accepted both the objections of the judgment-debtors and set aside the attachment of the house. On appeal by the decree-holders the Additional District Judge, Karnal at Gurgaon, however, affirmed the decision of the trial Court regarding Niranjan Lal's claim as an adopted son of Ujagar Mal but rejected the objections under section 60(1)(ccc) Civil Procedure Code, with the result that half the house was released from attachment. Both the judgment-debtors and the decree-holders are dissatisfied with this decision and they have filed separate appeals in this Court and it will be convenient to decide both these appeal Nos. 683 of 1954 and 994 of 1954 by this judgment.

(3.) I shall first deal with the decree-holders' appeal (E.S.A. 994 of 1954). This appeal is directed against the order releasing half the house from attachment on the ground and this half share belonged to Ujagar Mal, and Niranjan Lal is his adopted son and the property of Ujagar Mal cannot be sold in execution of a decree obtained by the decree-holder against the estate of Ram Sarup. The decree under execution, however, is a personal decree against Niranjan Lal. The lower Courts are wrong in holding that the decree was passed against Niranjan Lal and others as legal representatives of Ram Sarup. The decree nowhere states that Niranjan Lal and others have been impleaded as legal representatives of Ram Sarup nor is there any direction that the judgment-debtors' liability is limited to the estate of Ram Sarup in their hands. In the circumstances, it must be held that Niranjan Lal is personally liable to pay the decretal amount and whether he has inherited half the house form Ujagar Mal as his adopted son or is entitled to 1/3rd share in the house being one of the three sons of Ram Sarup, does not affect the position at all. Niranjan Lal, even if he is adopted son of Ujagar Mal, must satisfy the decree as one of the judgment-debtors and the decree-holders are entitled to attach and sell all his property whether inherited from Ujagar Mal or Ram Sarup or otherwise inherited or acquired, I therefore, hold that the lower appellate Court was in error in releasing half the share in this house on this ground. The result is that this appeal filed by the decree-holders must be accepted.