BIRESWAR DAS DEY Vs. KAMAL KUMAR DUTT

JUDGEMENT

(1.) This appeal is directed against an order by which the Court of Appeal below, in reversal of the order of the Court of first instance, has refused execution of a decree for rent held by the appellants against one Adharmoni. It appears that the decree was obtained on the 11th August 1900 for rent of a temporary tenure originally granted to Jogendra Nath Mallik which, after his death, passed into the hands of his widow Adharmoni, who was also administratrix to the estate of her husband. She enjoyed the income but made default in payment of rent to the superior landlord; the decree now under execution was consequently obtained against her. The decree was not, however, fully executed daring her life-time, and now after her death, execution is sought against the estate of her husband, Jogendra Nath Mallik in the hands of the reversionary heir. On behalf of the decree-holders, it has been urged, first, that as Adharmoni h described in the decree as administratrix, the decree is binding upon the estate in the hands of the reversionary heir and it is not open to the latter to show that the decree was made under circumstances which do not mate it so binding, and, secondly, that as the decree was for arrears of rent, it was essentially a decree against the estate and may consequently be executed against the estate in the hands of the reversionary heir. In support of the first contention, reliance has been placed upon the cases of Ishan Chunder Mitter v. Buksh Ali Marsh. 614 The General Manager of Raj Durbungah v. Ramput Singh 14 M.I.A. 605 : 17 W.R. 459; Baijun Doobey v. Brij Bhookun Lall Awusti 24 W.R. 306 : 1 C. 133 : 2 I.A. 275; Tiluck Chunder Chuckerbutty v. Muddun Mohun Joogee 12 W.R. 504; Jugul Kishore v. Jotendro Mohun Tagore 10 C. 985 : 11 I.A. 66; Roy Radha Kissen v. Nauratan Lall 6 C.L.J. 490. In support of the second proposition, reliance has been placed upon the cases of Kristo Gobind v. Hem Chunder Marsh. 16 C. 511; Brajalal Sen v. Jiban Krishna Roy 26 C. 285; Jiban Krishna Roy v. Brojo Lal Sen 30 C. 550 : 7 C.W.N. 425 : 30 I.A. 81 : 5 Bom. L.R. 428 and Sakrabhai Nathubhai v. Magan Lal 26 B. 206 : 3 Bom. L.R. 738. In our opinion, the cases relied upon are of no assistance to the appellants and both the contentions must the overruled as unsound.

(2.) In so far as the first contention is concerned, it is clear that the description of Adharmoni as administratrix in the decree is not conclusive as against the reversionary heir of her husband. It is not disputed that the reversionary heir was not a party to the decree; and, on first principles, therefore, he is in no way bound by the recital therein. Sarba Sundari v. Harendra Lal Roy 12 C.L.J. 549 : 7 Ind. Cas. 490. It is also not questioned that although Adharmoni was described as administratrix, the decree was not specifically made against the estate of Jogendra Nath Mallik in her hands. It is clear, therefore, that the description of Adharmoni as administratrix cannot be deemed to establish conclusively against the reversionary heir that the estate in his hands is bound by the decree. As was pointed out by this Court in the case of Roy Radha Kissen v. Nauratan Lall 6 C.L.J. 490 although where a decree has been obtained upon a fair trial in a suit against a Hindu widow, that decree is effectual and operative as against the reversionary heirs unless the decree can be successfully impeached on some special ground, such decree operates as res judicata only in respect of questions which could arise in the litigation and were tried by the Court. In the case before us, no question could arise in the suit for rent as to whether the sum claimed constituted a personal debt of Adharmoni or was payable out of the estate of her husband in her hands. It is thus clear that as the decree-holders seek to execute the decree against a person other than the judgment-debtor, the burden is upon them to establish the existence of circumstances which would entitle them to execute the decree as against such person, and it is open to the stranger to rebut the allegation that the decree is operative against the estate in his hands. In so far as the second question is concerned, it is clear that the decree was a personal decree against Adharmoni, as shown by the cases of Krishna Gobinda v. Hem Chander 16 C. 511 and Bojo Lal v. Jiban Krishna Roy 26 C. 285. The view thus taken in the second case was, subsequently, affirmed by the Judicial Committee. Jiban Krishna v. Brojo Lal 30 C. 550 : 7 C.W.N. 425 : 30 I.A. 81 : 5 Bom. L.R. 428.

(3.) The result is that the order of the District Judge is affirmed and this appeal dismissed with costs. We assess the hearing fee at two gold mohurs.