COLLECTOR OF SHAHJAHNPUR AS MANAGER OF THE COURT OF WARDS OF THE ESTATE OF KUAR BUDHPAL SINGH Vs. LALA KUNJ BEHARI LAL

JUDGEMENT

(1.) THIS appeal in an execution case arises out of the following facts. In April 1902, Kunj Bihari Lal, respondent in this Court, obtained a decree against Kunwar Mohendra Singh and Budhpal Singh, the son and grand-son, respectively, of Raja Narain Singh in respect of a debt incurred by the said Raja. The decree-holder in the year 1902 sought to execute this decree by attachment and sale of a village which was found to be ancestral property of Raja Narain ingh. The Court executing the decree held that the decree, as it stood, was incapable of enforcement against the ancestral property of the original debtor, but only against property in the hands of the judgment-debtors by way of inheritance from Raja Narain Singh, and not by way of survivorship as members of the same joint Hindu family. THIS decision was acquiesced in by the decree-holder, who in fact made an ineffectual attempt to obtain a review of the decree from the Court which had passed it. In the month of March, 1909, the decree-holder again took out execution against property which was the ancestral property of Raja Narain Singh. He claims to be entitled to do this because of the provisions of Secs.52 and 53 of the new Code of Civil Procedure, Act V of 1933. We are of opinion that these provisions do not help him. In the decree of April, 1902, Kunjbihari Lal was expressly given the right to recover certain money from such property as might have passed to his only judgment-debtors by way of inheritance from Raja Narain Singh. The decree has been interpreted in this sense as between the parties, and that interpretation has become res judicata between them. The subsequent alteration in the law can have no effect as regards this question, namely, what did the Court which passed the decree intend to give to the decree-holder and what rights were actually given him by the said decree? We, therefore, are of opinion that this appeal must prevail. We set aside the order of the lower Court and dismiss the application for execution. The appellants will get their costs throughout, which will, in this Court, include foes on the higher scale.