AIDAL SINGH Vs. KHAZAN SINGH

JUDGEMENT

(1.) This appeal raises a rather novel question of law. The facts are simple and are these: Khazan Singh obtained a decree for money on foot of a promissory-note executed by one Bhagwana in his favour. Bhagwana is an agriculturist. In execution of his decree his house and enclosure were attached. His brother objected to the attachment of the entire property, and at his instance one-half was exempted from attachment. Bhagwan himself raised the plea that he was an agriculturist, and under the provisions of Section 60, Civil P.C., the property was not liable to attachment and sale. Unfortunately for him and his sons, there was a default in the prosecution of the objection by Bhagwana and the objection was dismissed. The property has been sold and has been purchased by the decree- holder Khazan Singh himself.

(2.) Soon after the sale, the three sons of Bhagwana and his wife instituted the suit out of which this appeal has arisen. The plaintiffs case was that the house and the gher (half-share belonging to Bhagwana) was an ancestral property in the father's hand and, being an agriculturist's house and appurtenance thereto could not be attached and sold in execution of the decree. They accordingly asked for a declaration that the sale was null and void and was not binding on the plaintiffs.

(3.) Khazan Singh defended the suit and he denied the statement made in the plaint that the property was ancestral, but nowhere, further in his written statement, he stated specifically that the property in suit was the self-acquired property of Bhagwana. The plaintiffs had taken exception to the decree on the ground that no debt really existed. On this point the rejoinder of Khazan Singh was that he did lend money and the decree obtained by him was a lawful one.