ATA HUSAIN Vs. MUSTAFA HUSAIN

JUDGEMENT

(1.) Two points of law have been raised in this appeal and a third point, also of law, has been argued with the permission of the Court.

(2.) It appears that Mt. Amrit Bibi, the Respondent 2, brought a suit for recovery of her alleged dower-debt from the decree-holder, Respondent 1, Mustafa Husain, who was in possession of some of the property of the late husband of Mt. Amrit Bibi, as heir to his wife, the daughter of Mt. Amrit Bibi's husband. While the suit was pending, Mustafa Husain obtained an order from the Court to the effect that the plaintiff Mt. Amrit Bibi must furnish security for his costs. This security was furnished by the appellant Ata Husain. He gave a bond hypothecating a certain property on the 25 April 1922. The suit was decided against Mt. Amrit Bibi and Mustafa Husain has taken out execution for costs. He applied for the sale of the property hypothecated by Ata Husain and also he applied for the attachment and sale of certain other property said to belong to Mt. Amrit Bibi.

(3.) Ata Husain objected to the execution proceeding against him and his case is that he is liable only after Mt. Amrit Bibi has been compelled to pay and has failed to do so and that a failure on the part of the decree-holder to execute that decree against Mt. Amrit Bibi amounted to release of his liability. The point urged for the first time is that the appellant's liability can be enforced by suit and not in execution.