KAMESHWAR SINGH Vs. KRISHNANAND SINGH

JUDGEMENT

(1.) This is a decree-holder's appeal arising out of an order allowing the objections raised by the judgment debtors, under Section 47, Civil P. C., to the maintainability of an execution case.

(2.) In this case, the Maharajadhiraj, of Dar-bhanga is the decree holder and Kumar Krishnanand Sinha and others of Banaili are the judgment-debtors. The estate of the judgment-debtors was in the hands of a receiver appointed by the court-in Title Suit No, 13 of 1935, The Maharajadhiraj of Darbhanga had to get from the judgment-debtors a huge sum of money, and an application on his behalf was made in that title suit for a direction to the receiver to pay that amount to him. The application was allowed, and the receiver was directed to pay the money to the Maharajadhiraj. Necessary provisions were made for its payment in the budget of 1356 Fasli. The receiver, however, did not pay him anything, and ultimately the court passed an order on 13-9-1949, permitting the Maharajadhiraj of Darbhanga to realise the amount by executing the order of the court against the properties of the judgment-debtors in the hands of the receiver. The Maharajadhiraj of Darbhanga as a decree-holder thereafter started execution of the order on 11-2-1950, and sought to proceed against three lots of house properties of the judgment-debtors. After attachment and sale proclamation were duly effected, the judgment-debtors, on 19-8-1950, took time to pay the decretal dues and waived all objections regarding the issue of fresh sale proclamation. The case was therefore, adjourned to 21-7-1950, on which date the judgment-debtors again took time for settling the matter by compromise, and waived all irregularities in connection with the issue of fresh sale proclamation. The sale was, therefore, adjourned to 21-8-1950, and on this date an application was filed on behalf of the judgment-debtors challenging the proceedings of the execution case on various grounds. On this application Miscellaneous Case No. 91 of 1950 was started.

(3.) The grounds that were pressed by the judgment-debtors against the maintainability of the execution proceedings were: (1) that the order of the court directing the receiver to pay the amount to the decree-holder was purely an administrative order, and, as such, it could not be enforced by execution; and (2) that the house properties sought to be sold to execution of the order were not in the hands of the receiver and they, therefore, could not be sold. The miscellaneous case came up to be heard on, 13-11-1950, on which date the (earned pleader on behalf of the decree-holder admitted that the properties sought to be proceeded with in the execution case were the personal properties of the judgment-debtor and that they had not vested in the receiver. As, however, the lawyer for the decree-holder was not prepared on law points, the case was adjourned to 2-12-1950, for final hearing. The case was thereafter heard on points of law, and the learned Subordinate Judge by his order dated 12-12-1950, overruled the first objection of the judgment-debtors and held that the order in question was a judicial order and was capable of execution. With regard to the second objection, he held that, in view of the order passed by the court, the decree-holder could not proceed with the execution as against the properties of the judgment-debtors which were not in the hands of the receiver. The objection of the judgment-debtors against the maintainability of the execution petition was, therefore, allowed and the decree-holder has come up to this Court- in appeal against that order.