ANAND KRISHNA Vs. KISHAN DEVI

JUDGEMENT

(1.) This appeal raises a point of law for which no authority either way has been produced before us. The point has to be decided on general principles. It appears that the respondent Mt. Kishan Devi held a decree for money for a large amount against four persons, the appellant Anand Krishna and his brother Raj Bahadur Krishna, Shiam Krishna and their mother Mt. Kishan Devi. At one stage of the execution a certain house was attached as the property of the judgment-debtors and was sold on 24 August 1922. It was purchased by the decree-holder Mt. Kishan Devi, and the sale was in due course confirmed, The sale was however contested by a suit by one Jagmohan Swarup, who claimed to have purchased a half-share in the property, being the share belonging to the judgment-debtors ancestors brother Badri Krishna. The suit succeeded with the result that Mt. Kishan Devi lost a half-share in the property purchased by her.

(2.) By the application for execution out of which this appeal has arisen Mt. Kishan Devi seeks to recover a sum of Rs. 3,000 being one-half of the auction-sale-price paid by her. The judgment-debtor Anand Krishna objected to the execution but was unsuccessful. Hence this appeal.

(3.) A preliminary point has been taken on behalf of the respondent, namely the appeal is not maintainable at the instance of Anand Krishna, inasmuch as the property that has been sought to be attached is the property not of Anand Krishna but of his brother Raj Bahadur Krishna. We do not think that this preliminary objection has any force. The execution application itself shows that the decree- holder sought execution against all the judgment-debtors and not against Raj Bahadur Krishna alone. If the application be successful and if the property attached do not fetch the full amount for which execution has been taken out, there will be nothing to prevent the decree-holder from seeking execution against the present appellant. The present appellant would then be met with the plea that he ought to have preferred an objection to the execution and the execution order operates as res judicata. The decree is a joint one, and we think any one of the judgment-debtors may object to the execution although for the time being his personal property has not been attached.