RANCHORE PRASAD NARAIN SINGH Vs. BIBI TAHZIBUNISA

JUDGEMENT

(1.) This is an appeal against an order dismissing the objection of the appellants under Section 47 of the Code of Civil Procedure. On the 18th of Feb. 1947, Hare Krishna Prasad Narain Singh, father of the appellants, executed a usufructuary mortgage in favour of the decree-holder in respect of a house for a sum of Rs. 30,000. Subsequently, when it was discovered that the house had been allotted to other persons by virtue of a preliminary decree passed in Title Suit No. 59 of 1943, on the 18th July, 1947, he executed a security bond as well for the said amount in respect of other properties belonging to him and other members of his family including the two appellants. Both the deeds were executed during the pendency of a partition suit, No. 19 of 1946, which was between the two appellants and Hare Krishna Prasad Narain Singh. When the latter failed to put the decree holder in possession of those properties in respect of which he had executed the security bond, a mortgage suit, No. 41 of 1948, was instituted for realisation of the amount secured by the usufructuary mortgage and the security bond. The present appellants were also made parties to that suit. Hare Krishna Prasad Narain Singh did not contest the suit. The present appellants contested the suit; and one of the defence taken by them was that as the usufructuary mortgage and the security bond were executed during the pendency of the partition suit, they were hit by the doctrine of lis pendens and would not bind them and affect the properties allotted to them on partition in the aforesaid suit. The suit was decreed against Hare Krishna Prasad Narain Singh and dismissed against the appellants before us. It was ordered in the preliminary decree, which was passed on the 5th February, 1951, that in default of the payment of the money by Hare Krishna Prasad Narain Singh, his share in the properties mentioned in schedule 2 attached to the plaint as determined by Title Partition Suit No. 19 of 1948, would be sold away to satisfy the dues. This decree was made final on the 5th January, 1953. The decree-holder levied Execution case No. 6 of 1955, which was dismissed for default in the year 1957; She thereafter filed an execution case out of which the present appeal has arisen for execution of the decree. In the execution petition she made the following three prayers: 1. Attachment of the compensation money payable to Hare Krishna Prasad Narain Singh; against the properties given in schedule A of the execution petition;

(2.) Attachment of the monies given in schedule B; and

(3.) Attachment and sale of the properties given in Schedule C. The appellants preferred an objection before the executing court on the ground, amongst others, that the execution case could not proceed as-