SARDAR RAM SINGH Vs. KHIRODHAN DEVI

JUDGEMENT

(1.) This is a miscellaneous first appeal by the decree-holders from the judgment and order dated the 10th October, 1958, passed by the 3rd Additional Subordinate Judge, Hazaribagh, allowing the objection of the judgment-debtor respondent under Section 47 of the Code of Civil Procedure (hereinafter referred to as the Code) and releasing the property in schedule 'kha" of the execution petition from attachment and sale. The appellants filed Money Suit 19 of 1955 against Basudeo Ram, husband of the respondent, for realisation of Rs. 23220/- on the basis of the handnote executed by him on the 2nd of August, 1952. Basudeo died during the pendency of the suit and his widow was substituted as his legal representative. She filed a written statement and contested the suit. It was decreed on the 29th of August, 1957, for the amount claimed with interest and a sum of Rs. 2929/7/- was awarded as cost of the suit with interest at 6 per cent per annum. During the pendency of the suit, the property in question was attached before judgment but, after the decree, an order for its release was passed on 19-9-57 under Order 38 Rule 8 of the Code in Miscellaneous Case 2 of 1955 ('1958' seems to be a mistake in the judgment of the Court below) filed by the respondent.

(2.) The appellants put the decree in execution and wanted to proceed against the same properly on the ground that the respondent, as the heir of her husband, had come in possession of certain properties belonging to him and had appropriated them. In this execution case, the respondent filed an objection for release of the property taking the stand that it being her personapl property was released in the previous miscellaneous case under Order 58 Rule 8 of the Code and that it was not liable to be attached and sold in execution of the money decree which was passed against her as the legal representative of her husband. The appellants filed a rejoinder to the said petition and it would be useful to reproduce the contents of the said petition in full -

(3.) It appears that Basudeo Ram was joint with his father Karu Ram (A. W. 3) and died in a state of joint-ness leaving behind his widow, the respondent. On a consideration of the evidence adduced by the parties, the Court below has held -