LAL KUMARI DEVI Vs. FULMATI KUER

JUDGEMENT

(1.) This application has been filed by the persons at whose instance Miscellaneous Case No. 21 of 1962 had been registered under the following circumstances: In 1960, an execution case was commenced by the decree-holder, which was numbered as Execution case No. 112 of 1960. The execution was levied as against some properties of one Basudeo Prasad. According to the decree-holder, Basudeo Prasad was a co-judgment debtor of the decree holder with respect to a decree which had been passed against Basudeo Prasad and one Mahendra Lal. It appears that during the course of this execution case, the decree-holder died and thereafter, Basudeo Prasad also died. The present members of the opposite party continued the execution case as the widow and the sons of the original decree-holder as against the present petitioners, who are the widow and the sons of Basudeo Prasad. These petitioners, there-after, objected to the attachment of the properties, which were attached in the execution case for realisation of the decretal dues. The application was originally filed under Order XXI Rule 58 off the Code of Civil Procedure. Thus, Miscellaneous Case No. 21 of 1962 was registered. The learned subordinate Judge, who decided this miscellaneous case, in the first instance, held that the application was really under Section 47 of the Code of Civil Procedure, and there is no dispute about it at this stage. It appears that two contentions were raised before the learned Subordinate Judge, namely, whether the properties of the heirs of Basudeo Prasad are liable to be proceeded against in execution of the decree, or, whether they should be released. On the materials on record, the learned Subordinate Judge held that Basudeo Prasad was also a co-judgment-debtor, although so far as the loan upon which the suit bad been instituted was concerned, Basudeo Prasad was a surety for the principal debtor. On the second question agitated before the learned Subordinate Judge, he was of the view that the decree-holders must exhaust other remedies against the property of Mahendra Lal, the principal debtor, before they could fall back on the properties of Basudeo Prasad, especially when by order dated the 6th April, 1957, in an earlier execution case, the properties of Basudeo Prasad had been struck off from the list of the properties proceeded against. Thus, the miscellaneous case succeeded and the opposite party carried an appeal to the court of appeal below. The teamed Additional District Judge has allowed the appeal and has reversed the order of the learned Subordinate Judge. According to the court of appeal below, Basudeo Prasad was a co-judgment-debtor and the decreeholders were entitled to proceed against the properties of Basudeo Prasad, as the latter equally liable with Mahendra Lal.

(2.) Learned counsel for the petitioners has raised four points in this Court, which I shall deal with seriatim. The first contention urged by the learned counsel is that the decree-holder having died during the proceeding in execution, his heirs can be permitted to continue with the execution only if they have taken out a succession certificate under the provision of Section 214 (1) (b) of the Indian Succession Act. From the two judgments of the two courts below, it does not appear that this question had been agitated in the courts below, and upon a decision of this Court, in the case of Raghubir Singh v. Raj Rajeshwar Pd. Singh, AIR 1957 Pat 435, it appears that this contention is without any merit. The present execution case having been commended by the original decree-holder, Section 214 (1) (b) has no application at all. The second contention raised by learned counsel is to the effect that before the heirs of the original decreeholder can be permitted to execute the decree, a certified copy of the judgment and decree should have been filed in this case, to show that Basudeo Prasad was a co-judgment-debtor, and to show under what condition Basudeo Prasad had been made liable to pay. In my opinion, this point cannot be agitated in this application any farther as both the courts below have held that the decree had been against Basudeo Prasad also. The next point urged by learned counsel is that in an earlier execution case, the properties of Basudeo Prasad had been exempted, and therefore, the self-same properties cannot be proceeded with in this execution case. On this point also, I am of the opinion that there is no merit whatsoever in it. It may be that at one stage the decree-holder had exempted the properties of Basudeo Prasad in an earlier execution case, but there is no bar to the properties of Basudeo Prasad being proceeded against afresh. It appears from order No. 4, D/- the 6th April, 1957 (Exhibit D(1)) that the miscellaneous case Instituted by Basudeo Prasad, numbered as Miscellaneous Case No. 299 of 1956, had been dismissed without adjudication, as the then decree-holder had expunged Basudeo Prasad's properties from the Talika of the execution petition. In my opinion, there is no reason to hold that the properties of Basudeo Prasad cannot be proceeded against at this stage. Lastly, it is urged that if the properties of Basudeo Prasad are still liable for the satisfaction of the decree, the sons of Basudeo Prasad are liable to the extent of the assets they had received from Basudeo Prasad. This is a well-established question of law and it is not necessary to lay down the proposition of law in this case. So far as the record of this case is concerned, there does not appear to be any material to indicate that the judgment-debtors had raised any point that the properties under attachment have not devolved on the heirs of Basudeo Prasad, as assets of the judgment-debtor, in their hands. If such question arises, it may have to be determined.

(3.) For the reasons given above, this application must fail and it is dismissed. Hearing fee is assessed at Rs. 51.