MOHAMMAD YUSUF Vs. MUSAMMAT AMTUL HABIB

JUDGEMENT

(1.) This appeal arises out of au execution proceeding, and the preliminary question for consideration is whether the decree-holder has realised the decretal money in whole or in part by selling a portion of the property, which was liable for its payment. The decree-holder, Musammat Amtul Habib, is the widow of Rahim Baksh, who died leaving certain heirs who took possession of his estate. Musammat Amtul Habib tiled a suit for the recovery of her dower against them and got a decree for Rs. 5,000 on the 15 July 1912 enforceable against the assets left by Rahim Baksh deceased. In the plaint the lacy is said to have stated that if, after the payment of her dower debt, any assets of her deceased husband were left, she would afterwards sue for the recovery of her one-fourth share of the same.

(2.) This decree has been under execution more than once. The judgment debtors paid Rs. 4,268 on the 7 October 1912, and subsequently sold certain property left by Rahim Baksh to the extent of their, three-fourths share therein. An application was made by the decree holder for the recovery of the balance of her decree which was met by the judgment-debtors with the plea that the" balance represented the one-fourth share of her own liability for, the decretal debt" chargeable on that portion of the estate to which she was entitled as a widow of Rahim Baksh under the Muhamtoadan Law. The Court executing the decree allowed that objection but on appeal that order was set aside. There was a further appeal to this Court which by its decision dated the 11 May 19l5 upheld the order of the lower Appellate Court, subject to the condition that in the event of a suit being brought by the present decree-holder to recover her share in the estate of her deceased husband, of which she alleged herself not to be in possession, the matter in dispute would be adjusted, or in other words, the liability of the decree- holder, for the one-fourth share of the dower debt, chargeable on that portion of the estate, to which she would be entitled tinder the Muhammadan Law, could be taken into consideration.

(3.) Further proceedings in execution were thereafter taken by the decree-holder; and in one of those proceedings an objection was again filed by Muhammad Yusaf, one of the judgment debtors, that the decree-holder had already transferred by mortgage and sale her share in a portion of the property left by her husband and that the decree has in effect thus been discharged. That objection does not appear to have been pressed before the Subordinate Judge of Saharanpur, in whose Court the execution proceeding was pending, and was disallowed by him on the 14th January 1919. In 1921 there was another application for the execution of the decree and it is admitted that that application was struck off for default on the 25 May 1922.