PRASADI MAHTON Vs. GHULAM MNRTAZA

JUDGEMENT

(1.) THE miscellaneous appeal and the civil" revision application have been heard together, as they arise out of the same order.

(2.) I shall deal with the miscellaneous appeal first. The appeal arises out of an application filed in the Court below under S. 47, Civil P. C. objecting to the sale of certain lots mentioned in the talika in the execution case by one Prasadi Mahto who was added in column No. 9 of the application for execution at the instance of the decree -holder. The facta necessary for the decision of this appeal are these; The decree -holder had obtained a decree on 18 -2 -1940, from the Court of the Munsif of Bihar against one Mt. Chamni on the basis of a hand note. This decree was transferred to the Court of the Munsif of Barh on 10 -8 -1948. for execution. On 7 -9 -l948, the decree -holder applied to the executing Court in the prescribed manner for the execution of the decree against Mt. Phulia and one Ram Charitar Mahto, as Mt. Chamni had died. Subsequently, the Lame of the appellant, Prasadi Mahto, was added as a judgment -debtor by an order dated 15 -12 -1948, on an application of the decree -holder, on the ground that, on the death of Mt. Chamni it was necessary to mention the name of Prasadi Mahton in column 9 of the execution petition, Thereafter, on 27 -1 -1949 Prasadi Mahto, having received notice, filed an objection under s. 47, Civil P. C. to the execution of the decree against him on certain grounds mentioned therein, one of the grounds being that the execution case itself was not maintainable. The learned Mansif of Barh observed that the most important and the foremost question for the purpose of determining the maintainability of the execution case was as to who was the legal heir who represented the estate after the death of Mt. Chamni, and who was in possession of the properties including the properties under talika. The learned Munsif stated that the decision called for the determination of the question of legal heir, and that he, being an executing Court, could not legally decide the point, as such matters were within the province of the Court which had transferred the decree to him. As the decree holder had not obtained any decision from that Court on this point, the learned Munsif held that the execution case was not maintainable.

(3.) ON appeal be this Court, it was argued that the order passed by the learned Additional District Judge was erroneous, as the original order of the learned Munsif of Barh dismissing the execution case as not maintainable was correct for the reason, that the decree -holder should have applied to the Court which had passed the decree for the substitution of the legal hens of Mt. Chamni.