BHOORCHAND Vs. KALYANCHAND

JUDGEMENT

(1.) AFTER having given my anxious consideration to the matter I regret that under the law I feel bound to uphold the decision of the learned District Judge in appeal, despite my sympathy for the decree-holder appellant.

(2.) THE appeal arises out of an execution case. THE relevant facts, as set out in the judgment, are that Bijaychand and his son Sawaichand executed a mortgage bond in respect of a house property, which was ancestral property, in favour of one Roopraj for a sum of Rs. 3,000/- on 30th of October, 1947. In the execution of the bond in question Bijaychand also purported to act as a guardian of his minor sons Kalyanchand, Sohanchand and Premchand. Roopraj, the mortgagee, then appears to have transferred his interest to Bhoorchand, the appellant before me. THE mortgage in question was apparently a usufructuary mortgage and Bijaychand the father and his son Sawaichand had also executed a rent note in favour of the mortgagee and got a lease back of the mortgage property. Under the terms of the rent-note, a certain rent was payable to the mortgagee, the lessor; but on account of default in payment of rent, Bhoorchand, the assignee, instituted a suit on 4th of September, 1948, for recovery of rent and ejectment. In that suit he impleaded not only the executants of the rent-note in question, namely, -Bijaychand and his son Sawaichand, but also the other son Kalyanchand. Bijaychand and Sawaichand did not appear to contest the suit. THE suit was mainly contested by Kalyanchand. On the 22nd of January, 1951, an ex-parte decree for rent and ejectment was passed against the defendants Bijaychand and Sawaichand, but the suit was dismissed with costs against the contesting defendant Kalyanchand. In execution, however, the decree-holder proceeded to execute the decree against all the defendants. Kalyanchand resisted the execution on the ground that the suit having been dismissed against him, the executing court could not go behind the decree and eject him from possession of the disputed property. He claimed that the property was ancestral and he was in occupation in his own right and not as a tenant deriving interest under the rent-note in question. THE decree was merely passed against his father and brother and the suit had been dismissed against him on contest. THErefore, no execution could be levied so far as he was concerned. THE learned Munsif rejected the plea of Kalyan Chand and allowed the execution to proceed against all the defendants; but on appeal the learned District Judge by his order dated 16th January, 1958, held that the execution could not proceed against Kalyanchand and his objections were well founded. He accordingly dismissed the execution case against him. THE present appeal is directed against the above order of the learned District Judge.