JETHMAL Vs. SAKINA

JUDGEMENT

(1.) THIS is an appeal by the defendants Jethmal and others against an order of remand passed under O. 41. R. 23, C. P. C.

(2.) THE material facts leading up to this appeal may be stated as follows. THE defendants obtained a money decree against Sahabuddin, husband of the respondent Mst. Sakina. Sahabuddin: died before execution was taken out. THE defendants decree-holders then proceeded in execution against Mst. Sakina as the legal representative of the deceased judgment-debtor, and on the 22nd March, 1955, attached a 'bara' (an open piece of land enclosed by fencing) as belonging to Sahabuddin. Mst. Sakina filed an objection against the aforesaid attachment on the ground that the bara in question had been given to her as dower by her husband, and, in support of this assertion, she produced a copy of a registered deed of dower dated the 24th July 1931. Her case was that ever-since this property was given to her, she had been in possession of it in her own right and that her husband had nothing to do with it. Issues were framed, and the case was fixed for evidence for the 3rd December, 1955. On that date, neither she nor her witnesses appeared, and, therefore, the objection was dismissed. Be it noted that the 3rd December, 1955, was the first date fixed for the respondent's evidence on her objection. THEreafter, thanks to the kind of advice which she presumably received from her lawyer, she filed the suit, out of which this appeal arises, under O. XXI R. 63 C. P. C. on the 21st December, 1955, with the prayer that the bara in question which had been attached by the defendants in execution of their decree against her deceased husband was not liable to attachment and sale in execution thereof as it was her own property by virtue of the registered deed of dower dated the 24th July, 1931.

(3.) IN Kaur Lal Vs. National Bank (11), it was held by the Lahore High Court that there was a long series of decisions in support of the proposition that sec. 141 does not apply to proceedings in execution. The same view was adopted by a bench decision of the Patna High Court in Laxmi Narayan Vs. Dipen Rai (12 ).