KUMAR CHANDRA SINGH DUDHORIA Vs. GOBINDA DAS NATH

JUDGEMENT

(1.) These appeals have arisen out of two petitions of objection to the execution of a decree against (1) the petitioner Gobinda Das Nath (2), the petitioner Shyama Charan Nath, and Radhaballav Nath. The decree is a simple money decree against Nityakali Dasya on her admission in a hatchhita (Ex. F) dated 2nd Baisack 1328 B.S. that up to that date she owed the moneylending firm of Raja Bijoy Singh Dudhoria Rs. 13,874-12-0. The claim in the suit in 1924 was for Rs. 18,945-13-0 including interest and costs. In an execution case of 1925 Rs. 17,550 was realized. In an execution case of 1929, Rs. 3,950 was realized.

(2.) The claim in the present execution case up to 1 January 1934 was Rs. 5,296 including interest and costs. Execution was taken out against the objectors not as legal representatives of Nityakali who died in 1932 but as owners of the property left by Rakhaldas Boral (the late husband of Nityakali). The objections are on the grounds: (1) that the decree is a personal decree, and the objectors did not obtain or take possession of any personal property of Nityakali, they are not her legal representatives and therefore are not liable under the decree; (2) Nityakali had only life-interest in the landed properties of Rakhaldas Boral which the objectors have inherited. This debt incurred by her was not for legal necessity since her husband left her a large amount of money so that the properties inherited by them cannot be sold in execution of the decree. The learned Subordinate Judge allowed these objections, to execution of the decree against the objectors and hence this appeal on behalf of the petitioner for execution.

(3.) The principal grounds which the appellants urged are: (1) that the learned Judge was wrong in holding that the decree was a personal decree against the widow. That it was really a decree against her as representing the estate of her late husband and for the realization of her husband's debts for which the estate was liable; (2) that in any case the objectors are liable under the compromise decree of Privy Council Appeal 10 in the High Court in a case brought by the objectors against Nityakali. As to the first point the plaint is clearly one for a personal decree against the widow. No relief is claimed as against her husband's estate or against her as representing that estate. The only foundation for the claim that it is a decree against her as representative of the estate is the statement in para. (2) of the plaint (Ex. F) as follows: That from the lifetime of the defendant's husband, Rakhaldas Boral, monetary transactions have been carried on with the said Kuthi (firm) of the plaintiff on the basis of Hishab Khatas and Hatchhittas. For the benefit of the estate and for the necessity of the estate the defendant, having, since the death of her husband, admitted the debts of the time of her husband, carried on the said monetary transactions, and on having the dues of the previous years calculated on adjustment of accounts and having got Hatchhittas written by her own manager and ammuktear, executed the same under her own duly authorized and authenticated seal.