CHAUBE MADHO RAO Vs. CHAUBE GUR NARAIN

JUDGEMENT

(1.) These are two execution appeals by one Chaube Madho Rao whose objection to execution proceedings has been dismissed by the lower Court.

(2.) The facts are that a decree-holder, Chaube Gur Narain obtained two decrees for arrears of profit against one. Chaube Binayak Rao, one of 22 February, 1928, which had been taken up in appeal to this Court, and another of 30 May 1926 which was not taken up in appeal. Subsequent to this apparently, the judgment- debtor Binayak became a sanyasi and on 18 August 1928 he made an application to the Collector asking that his son should be entered for all his property, and accordingly mutation was granted in favour of his son, the present appellant Madho Rao. The decree-holder made an application on 20 July 1928 for the execution of the decree, that is, his application was prior to the application of the judgment-debtor for the substitution of the name of his son on 23 August 1928. The attachment was granted. On 25 July 1929, the appellant Madho Rao made an application objecting to execution on the following grounds : He stated in his objection that he was now the absolute owner of the property in question and without his being made the heir of his father the execution proceedings could not proceed according to law and he claimed that the property had been wrongly attached. That objection has been dismissed by the execution Court on the grounds that as his father was alive it would be necessary for the property to be transferred by way of gift or by conveyance or by a decree of the civil Court.

(3.) In appeal the learned Counsel has based his argument on Section 50, Civil P.C., which states. Where a judgment-debtor dies before the decree had been fully satisfied, the holder of the decree may apply to the Court which passed it to execute the same against the legal representative of the deceased.