BADRI DAS Vs. HOSHIAR SINGH

JUDGEMENT

(1.) This is a decree-holder's appeal arising out of an application foe execution. A decree of the basis of a promissory note of the year 1919 was obtained by the decree-holder against the father of the present respondents. After the death of the judgmeat-debtor the decree was sought to be executed by attachment of certain properties in the hands of the sons as parsons in possession of the assets of the deceased. The sons filed objections in the execution Court pleading that they had been separate from their deceased father and that the property in their hands was their exclusive and separate property and was not liable to be attached in execution of the decree.

(2.) In their objections they referred to an award of 1914 followed by a decree of the Civil Court under which the family estate had been partitioned between the father and the sons. The Court of first instance relying on that award and decree allowed the objections. The decree-holder appealed from that order.

(3.) Before the appellate Court ha filed an application supported by an affidavit to the effect that there was a subsequent Civil Court decree of 1920 under which previous decree based on the award had bean declared to be fraudulent and fictitious. In his affidavit he stated that ha was not aware of the existence of the later decree at the time the order of the Court of first instance was passed and that he cams to know of it subsequently. The appellats Court did not pass any formal order finally disposing of the application in which it was prayed that a copy of the previous judgment should be admitted. It however in it judgment dismissing the appeal referred to the argument urged on behalf of the appellant that fresh evidence ought to b3 admitted. Id remarked that the decree-holder should have raised that question in the first Court and should have proved there that the award was fictitious. It thought that as the decree-holder had not done so the appellate Court could not take additional evidence in the Court of appeal. The appeal was accordingly dismissed on the merits.