MEHAR SINGH Vs. CHARAN SINGH

JUDGEMENT

(1.) This execution second appeal has arisen in the following circumstances. Mehar Singh appellant had obtained a decree against Charan Singh and Udham Singh respondents as legal representatives of their deceased brother Bhagat Singh who owed Mehar Singh Rs. 760 on the basis of a bond. The decree was against the estate of Bhagat Singh in the hands of his surviving brothers. Mehar Singh tried to excute his decree by attaching land which formerly belonged to Bhagat Singh and had been inherited by his brothers but his execution application was dismissed as it was held that the land being ancestral could not be attached and sold in execution of the decree.

(2.) Mehar Singh then applied under section 52(2), Civil Procedure Code, alleging that certain self-acquired land belonging to Bhagat Singh had been sold by the judgment-debtors who were therefore liable to pay the decretal amount out of the sale proceeds of that land. It was in fact found by the executing Court, that certain land purchased by a sale deed dated the 2nd of June 1919 had been sold by the judgment-debtors for Rs. 6,000 the price of Bhagat Singh's one-third interest in that land thus being Rs. 2,000. The learned Subordinate Judge also found that the judgment-debtors had altogether failed to prove that the money received representing Bhagat Singh's share of the sale proceeds had been applied by them to the discharge of other debts alleged to be due from Bhagat Singh. In these circumstances the personal liability of the judgment-debtors to discharge the decretal debt was upheld under Section 52(2) which reads -

(3.) Against that order the judgment-debtors filed an appeal which has been decided in their favour by the learned Senior Sub Judge who, without going into the findings of the executing Court regarding the sale of the self, acquired property and the disposal of Bhagat Singh's share of the proceeds at all, has held that section 52(2) did not come into operation as long as there was other property of Bhagat Singh still in the hands of the judgment debtors. Section 52(1) reads -