LACHHMAN DASS Vs. SARUP CHAND

JUDGEMENT

(1.) Lachhman Dass, the present petitioner, filed a civil suit for recovery of money against Basakha Ram defendant. Basakha Ram defendant expired during the pendency of the civil suit and his sons, Sarup Chand, Mithu Ram, Lal Chand, Jagdish Rai and Ram Lal, widow Smt. Ishro Devi and daughter Pillo were substituted in his place. The suit was decreed for Rs. 19,448/- with costs and with future interest, and the appeal filed by Sarup Chand, one of the legal representatives, was also dismissed by the District Judge, Bathinda vide judgment dated 14th December, 1988. Lachhman Dass, thereafter preferred an execution application for the recovery of an amount of Rs.29,370/- and during the pendency of the application, land measuring 16 kanals comprised in Rectangle and Killa No. 15/15/3 min (9-13) and 7/2 min (6-1) situated in the area of village Kallo was attached. An application under Order 21 Rule 66 of the Code of Civil Procedure was thereafter moved by the decree-holder for putting the said land to auction. Some of the Judgment Debtors being the LRs of Basakha Ram deceased, filed an objection petition averring that though Basakha Ram had 1/6th share in the land measuring 16 kanals that had been attached the remaining share of the land belonged to the other co-parceners, and could not be put to auction. It was that Basakha Ram had during his life time alienated the land beyond his 1/36th share out of 260 Kanals 16 Marias by way of mortgage and as such the proposed auction was not justified. The learned District Court came to the conclusion that 16 kanals of land that had been attached in the execution proceedings, had not been shown to be in the exclusive possession of Basakha Ram or his legal heirs and as such the decree holder could get attachment only with regard to the land inherited by the sons of Basakha Ram from him. It was accordingly found that attachment to the extent of 16 kanals would remain in tact whereas the remaining land could not be put to auction.

(2.) Aggrieved against this order of the executing Court, the present revision petition has been filed by the plaintiff-Decree holder Lachman Dass.

(3.) The learned counsel for the petitioner has first and foremost pointed out that it was the case of the respondents herein (who were the legal representatives of Basakha Ram), who was one of the co-parceners, that they had inherited some of the land which stood attached on the death of Basakha Ram and to that extent the executing Court was in favour of the petitioner. He also argued that as per Hindu law, it was the pious obligation of the sons of the deceased to clear his debt and in that eventuality it was for the respondents as legal heirs of the deceased as also the members of the joint family to clear the debt of the deceased. Reliance in support of this assertion has been placed on a decision of this Court in Union of India v. Rajesh Kumar and Ors., (1976)78 P.LR. 456.