PARSOTTAM DAS Vs. KESHO SARAN

JUDGEMENT

(1.) This is a second appeal by the decree-holder in an execution case. The somewhat complicated facts out of which this appeal arises have been fully laid before me, but I do not think it necessary to enter into them in detail. The essential point in issue is a simple one. The judgment-debtors-objectors, Kesho Saran and Raghunath Saran, are bound by a decree under which they are liable only to the extent of any property which may have come to them by inheritance from one Musammat Puran Dei as the stridhan of that lady. Execution of the decree was sought by arrest of the person of the judgment-debtor, Kesho Saran. When confronted with the terms of the decree the decree-holders pleaded that certain property, the stridhan of Musammat Puran Dei, had come into the possession of Kesho Saran by inheritance from her and has been sold away by him, that he has not accounted for the proceeds and is, therefore, personally liable under the decree and subject to arrest in execution thereof Both the Courts below have simply found that it was not proved that any property, the stridhan of Musammat Puran Dei, descended to the judgment-debtors-objectors. The grounds taken in the memorandum of the second appeal to this Court are various but the case, has not been argued preciesly on the basis of those pleas. As a matter of fact three points have been taken. The first is that the judgment-debtors-objectors are estopped from denying their personal liability under the decree. The real point of this plea, when considered with reference to the antecedent facts, is that the decree-holders consider themselves very badly treated by the limitation imposed on the liability of these particular judgment-debtors, under the terms of the decree as passed. The suit was one for contribution, and it was compromised by some of the defendants but not by others. The present objectors were among those who compromised. The terms of the compromise have been read to me, and on the face of it the document implies that the defendants who entered into it were prepared to accept personal liability for the sum of money which they declared themselves willing to pay. It is impossible however, dealing with the matter on the execution side, to go back into the history of the case and to discover why the Court which passed the decree saw fit to limit the liability of all the judgment- debtors alike to the property derived by them from Musammat Puran Dei. No admission em bodied in the petition of compromise can estop the judgment- debtors from saying that the decree does not impose a personal liability on them. The representation made by them in the petition of compromise at most amounts to this, that they were prepared to accept a decree imposing a personal liability, If it be taken that the present decree-holder were thereby induced to believe that those judgment-debtors were prepared to accept such a liability, it only becomes the more surprising that they should have acquiesced in a decree subsequently passed which imposes no such liability. The long and the short of the matter is that the quarrel of the decree-holders is with the decree itself, and that they can get no relief against that decree in the execution department.

(2.) The second point taken is that the finding of the Courts below that no property was shown to have belonged to Musammat Puran Dei as her sridhan, or to have passed from her to the judgment -debtors-objectors, has been arrived at upon a misapplication of the burden of proof. In reality all that the lower Appellate Court has said is that there is no presumption in law, one way or the other, as to the nature of property found to be in the hands of a Hindu widow. The present appellants hold a decree which gives them certain rights against the respondents, subject to a condition : that condition being that some property, at one time the sridhan of Musammat Puran Dei, must be shown to have passed by inheritance to these respondents. Obviously, the burden of proof lies in the first instance on the appellants to satisfy the Court that the condition, subject to which they are entitled to anything at all from the respondents, has been fulfilled. The only evidence on the point consists of a statement by the respondent, Kesho Saran. That statement contains assertions mutually inconsistent, and it has been pressed upon me on behalf of the appellants that one or two statements made by Kesho Saran are such as would justify a presumption that a certain item of property, viz., certain mortgagee rights, which at one time, belonged to Musammat Puran Dei and subsequently belonged to the respondents along with other persons, were in the hands of Puran Dei as her stridhan. If I were sitting as a Court of first appeal to consider the effect of these admissions, I might have something further to say on the point. Those admissions, however, were present to the mind of the learned District Judge, and he has recorded his finding after fully considering and discussing the statement made by Kesho Saran. The appellants are really asking me to re-consider his opinion as to the relative importance of various assertions made by him. I am not prepared to hold that sufficient cause has been shown for interference with this finding in second appeal.

(3.) The third, point taken before me on behalf of the appellants is that certain evidence, viz., a copy of a judgment not inter partes was wrongly excluded by the Court of first instance. What I find on an examination of the record is that, at a certain stage of the proceedings in the certain of first instance, the decree-holder asked for an adjournment, on the ground that some witnesses of his (no details given) were not present, and that he desired time to enable him to produce certain copies of certain judgments. The case, therefore, is not one of evidence tendered and rejected, but of a refusal by the Court to exercise its power of adjourning the case in order to give a party an opportunity of producing evidence which he had not got ready at the proper time. The question was raised in the Court of first appeal, but I do not find that it was discussed in the judgment of that Court. The question of granting or refusing an adjournment on the ground that a party is not ready with evidence which he desires to produce is one essentially for the discretion of the Court concerned, a discretion to be exercised judicially upon a fair consideration of the opportunities the party in question has had of getting his evidence ready in time and the reasons given by him for having failed to do so. It is impossible for a Court of second appeal to interefere with the exercise of such discretion. This appeal, therefore, fails and I dismiss it with costs, including fees on the higher scale.