JYOTSNA MEHTA Vs. RAM BAHADUR THAKUR AND CO

JUDGEMENT

(1.) This appeal by Smt Jyotsna Mehta, wife of the judgment-debtor has been filed under O.22 R.58(4) of the Civil P.C. (in short the "Code") against an order dated 23rd June 1979 passed in Miscellaneous Case No. 87 of 1965/44 of 1976 by the Subordinate Judge 2nd Court, Muzaffarpur.

(2.) The short facts leading to this appeal are these:- The respondent No. 1 M/s. Ram Bahadur Thakur and Company obtained a decree against the respondent No. 2 Pashupati Nath Mehta and some others on 29-6-1963. On 3-10-1963 the decree-holder filed execution case No. 84 of 1963 and put certain properties belonging to the judgment-debtor under execution. Sometime in the year 1964 the properties were attached. Thereafter, it appears, some applications were filed under O.21 R.58 of the Code by the judgment-debtor and some others which were dismissed. The present appellant Smt Jyotsna Mehta filed an application under O.21 R.58 of the Code on 16-9-1965 which was registered as Miscellaneous case No. 87 of 1965. She claimed that in a partition suit she was allotted 1/3rd share in some properties by a compromise and she was in possession thereof. As she was not a party to the decree under execution the decree could not be executed against her or her properties. The plea was negatived and the Miscellaneous case filed by her was dismissed by the learned Subordinate Judge by the impugned order.

(3.) Mr. Shree Nath Singh learned counsel appearing on behalf of the respondents-decree-holder, at the very out-set, submitted that the appeal filed by the appellant in this Court under O.21 R.58(4) of the Code as amended in 1976 is not maintainable. He further submitted that the remedy of the appellant, if any, was to file a suit under O.21 R.63 of the old Code.