BACHOO BHAIDAS Vs. VELJI BHIMSEY AND CO

JUDGEMENT

(1.) After setting out the facts as above his Lordship proceeded : It was not suggested at the hearing of the suit before me that the defendants were actuated by malice or that there was absence of reasonable or probable cause in suing out the writ. Counsel for the plaintiff took his stand on the fact that the decree being against the estate of the plaintiff's father in the hands of his sons, the Court had no jurisdiction to direct a writ to issue against the person of the plaintiff, in support of his contention he relied on Brooks V/s. Hodgkinson (1859) 4 H. & N. 712 and Barker V/s. Braham (1773) 3 Wilson 368. On behalf of the defendants it was contended that the writ was justified by the order of the Court and reliance was placed on Raj Chunder Roy V/s. Shama Soondari Debi (1879) I.L.R. 4 Cal. 583 and Thakdi Hajji V/s. Budrudin Saib (1906) I.L.R. 29 Mad. 208. I do not think that either of the two Indian cases has any direct bearing on the present case.

(2.) Section 52 of the Civil P. C. (1908), which relates to enforcement of decrees against legal representatives, is as follows: (1) Where a decree is passed against a party as the legal representative of a deceased person, and the decree is for the payment of money out of the property of the deceased, it may be executed by the attachment and sale of any such property. (2) Where no such property remains in the possession of the judgment- debtor and he fails to satisfy the Court that he had duly applied such property of the deceased as is proved to have come into his possession, the decree may be executed against the judgment-debtor to the extent of the property in respect of which he has failed so to satisfy the Court in the same manner as if the decree had been against him personally.

(3.) At the hearing of the suit it became material to inquire how it was that the learned judge came to pass the order which he did, namely, "Execution to issue against first defendant only." But the evidence of what happened when the order was made is very meagre. The notes taken down by the learned Judge are as follows: Defendants absent. Tokersey plaintiff No. 3 s. a. proves service and claim. Execution to issue against defendant No. 1.