PHULCHAND RAM Vs. NAURANGI LAL MARWARI

JUDGEMENT

(1.) This is an appeal from a judgment of the Subordinate Judge of Bhagalpur, rejecting an objection to a sale by way of execution. The facts which gave rise to the case are as follows: The judgment-debtor and his children and the brother of the judgment- debtor and his children were co-owners with the decree-holder in a certain property. The matter of the profits of that property and the division of those profits led to disputes. By an agreement, between the parties a hatchita was. executed by the judgment-debtor and his brother admitting liability to the decree-holder in the sum of Rs. 7,000. There was a suit by the decree-holder on the hatchita which was made the subject of a compromise decree, and, according to this decree, the judgment-debtor and his children undertook liability for the amount sued for and the other members of the judgment-debtor's family, that is to say, the brother and his children were discharged. A decree was drawn up on the lines of this compromise and in execution of this decree the properties of the judgment-debtor and his children were sold, the decretal amount was realised, and the decree was satisfied. Later on the minor sons of the judgment-debtor sued for a declaration that the compromise decree was not binding upon them on the ground that the debt created by the compromise was of an immoral character and was not sanctioned as a compromise by the Court. That suit by the minors was successful and there has been no appeal from that decree. The decree-holder then in execution of the compromise decree started the present execution proceedings and took the view that now that the minors property had been exempted from the operation of the decree he was entitled to take out execution for one-half of the amount of the decree, that is to say, for about Rs, 3,000 odd against the property of the judgment-debtor who alone appeared, according to him, to be now responsible under the compromise decree and this view of the matter was upheld by the Subordinate Judge when the judgment-debtor objected to the further execution of a decree which had already been satisfied. It is clear that the position of the decree-holder is quite different from his position as an auction-purchaser which is a matter of chance. As a decree-bolder he cannot take out further execution of a decree which has already been satisfied. It is immaterial that in his capacity as an auction-purchaser he has purchased the property of some one who was not liable under the decree. This position was made amply clear by a judgment of the High Court of Madras in Muthukumaraswami Filial V/s. Muthuswami Thevan 50 M 639 : 100 Ind. Cas. 522 : 52 MLJ 148 : 25 LW 232 : 38 MLT 84 : AIR 1927 Mad. 394. It is frankly conceded by Mr. Sushil Madhab Mullick that the proposed execution cannot proceed and that the judgment of the learned Subordinate Judge cannot be supported.

(2.) The appeal must, therefore, be allowed with costs and it will be for the decree-holder, if he has some other remedy, to pursue that remedy as he may be advised. Varma, J.

(3.) I agree.