JITAN MAHTO Vs. MAUJI RAI

JUDGEMENT

(1.) IN this case the petitioner had applied for attachment before judgment in Title Suit No. 40 of 1957 in the Court of the 3rd Munsif, Patna, on the 27th March, 1957. The application was allowed and the learned Munsif ordered that there should be attachment before judgment of several plots of land of the opposite parties 2 to 6, including plot No. 1245, Khata No. 1658, of village Saidpur Digna. It appears that the petitioner had filed a suit against opposite parties Nos. 2 to 6, but on the 20th January, 1958, the suit was dismissed as against opposite parties Nos. 3 to 6. A decree was ultimately granted to the petitioner in the suit on the 7th June 1958, as against opposite party No. 2. It appears that on the 11th August, 1958, there was a sale of the disputed plot in favour of opposite patty No. 1 by the opposite parties Nos. 2 to 6. The petitioner applied for execution of the decree against opposite party No. 2 and prayed for sale of the entire plot 1245 which had been attached before judgment, including not only the share of opposite party No. 2 but also the shares of opposite parties Nos. 3 to 6. An objection was taken on behalf of opposite party No. 1 to the execution of the decree on the ground that he had purchased plot No. 1245 from opposite parties Nos. 2 to 6 on the nth August 1958. The executing Court has held that the share of the judgment-debtor Gulab Chandra Rai, opposite party No. 2, in plot No. 1245 will not be released from attachment, but the shares of his sons and grandsons in that plot, namely, opposite parties Nos. 3 to 6, will be released from attachment. The decree-holder has obtained a rule from the High Court calling upon the opposite parties to show cause why this order of the Munsif, dated the 8th September, 1960, should not be set aside.

(2.) ON behalf of the petitioner it was submitted in that ever though the petitioner did not obtain a decree in the title suit against opposite parties Nos. 3 to 6 nevertheless their interest in the disputed plot is liable to be sold in execution of the decree as against opposite party No. 2, because they are bound to pay the debt of opposite party No. 2 on the basis of the doctrine of pious obligation in Hindu Law. We do not think there is any substance in this argument. It is undoubtedly a correct proposition to state that in execution of a decree for money against the father of a Hindu coparcenary family the interest of his sons and grandsons can be proceeded against in the execution. It is manifest, however, in the present case that on the date of the execution sale, I that is, on the 17th December, 1959, opposite parties Nos. 3 to 6 had already parted with their interest in the disputed plot by the sale-deed in favour of opposite party No. 1 dated the nth August, 1958. As the opposite parties Nos. 3 to 6 had already parted with their title in the disputed plot in favour of opposite party No. 1, the petitioner could not lawfully proceed against their interest and sell it on the 17th December, 1959. It was, however, submitted on behalf of the petitioner that the order of attachment before judgment made on the 13th September, 1957, as against opposite parties Nos. 3 to 6 subsisted even on the nth August, 1958, when there was sale in favour of opposite party No. 1. We are unable to accept this argument as correct. The reason is that the suit stood dismissed as against opposite parties Nos. 3 to 6 by the order of the Munsif, dated the 20th January, 1958, and though there was no formal order of withdrawal of the attachment by the Court, it must be taken as a matter of law that the order of attachment before judgment stood automatically cancelled on the 20th January, 1958, when the suit stood dismissed as against opposite parties Nos. 3 to 6. That is the view taken by several authorities; see, for instance, the decision of the Calcutta High Court in Abdur Rahman v. Amin Sharif, ILR 45 Cal 780 : (AIR 1918 Cal 39). For these reasons, therefore, we hold that the decision of the Execution Munsif, dated the 8th September, 1960, is correct and there is no merit in this civil revision application which is accordingly dismissed. There will be no order as to costs.