DURGA DASS NARAIN Vs. UMATUL HOSEIN BEGAM

JUDGEMENT

(1.) The present appeal is directed against an order of the Subordinate Judge of Patna directing that the decree obtained in his Court against the father of the appellants should be sent to the District Judge of Gaya for execution in order that the decree might be executed by the sale of certain property which had been attached by the District Judge of Gaya in proceedings taken previously in execution of the same decree in his Court. The execution case had been struck off for default by the Judge of Gaya after the property had been attached and the decree had been returned to the Subordinate Judge of Patna.

(2.) It appears that the present respondent brought a suit against the father of the present appellants and obtained a decree on the 17 February 1904, for Rs. 8,699-5-0 in the Court of the Subordinate Judge of Patna. Afterwards the decree-holder applied for execution of the decree by attachment and sale of the property belonging to the judgment-debtors in the District of Gaya and put in an application under Section 233 of the Civil P. C. praying that the decree might be sent for execution to the Gaya Court. In consequence the Subordinate Judge of Patna drew up the necessary proceeding and in December, 1904, sent the decree to the District Judge of Gaya for execution. On the 24 December 1904, the decree holder applied for execution of the decree by attachment and sale of certain immovable properties of the judgment-debtor situated within the District of Gaya. The properties were attached on the 20 January, 1905 and on the 13 February, 1905, the sale proclamation was ordered to be issued and it was duly served on the 18 March, 1905. On the 31 March, 1905, the present appellants, one of whom was minor, applied under the provisions of Section 278 of the Civil Procedure Code to have their shares in the ancestral properties released from attachment. It must be noted that the appellants with the original judgment-debtor were members of a joint Hindu family governed by the Mitakshara law. Their application was, however, struck off for default on the 26 May 1905. Subsequently their father, the original judgment-debtor, paid in July, August a September, in three instalments, the sum of Rs. 1,300 in satisfaction of the decree and in October, 1905, he died. The sale of the attached properties appears to have been stayed in consequence of the payment of these sums in satisfaction of the decree, the attachment remaining subsisting. The case was fixed for hearing on the 1 November in the Court of the District Judge of Gaya and on that date intimation was given to the Court that the judgment-debtor had died. On the 2 November, the pleader for the decree holder appears to have been sent for and on his representing that he had received no instructions from his client, the case was struck off. Afterwards the District Judge of Gaya returned the decree to the Subordinate Judge of Patna with a certificate stating to what extent the decree had been executed and how far it remained unexecuted.

(3.) On the 9 December 1905, the present respondent put in an application before the Subordinate Judge of Patna praying that as the proceedings in execution in the Gaya Court had failed owing to the death of the judgment-debtor, the decree might be sent to the District Judge of Gaya with a certificate to enable her to realise the balance of the decretal amount through that Court. An objection was taken by the present appellants who had been substituted on the record as legal representatives of the original judgment debtor, on the ground that the Gaya Court was the proper Court in which the application ought to have been made and that the Patna Court had no jurisdiction to entertain it. The Subordinate Judge of Patna, however, held that as the District Judge of Gaya had sent the decree back to his Court under Section 223 of the Civil Procedure Code, his Court being the Court which passed the decree had power to decide whether the decree-holder could execute the decree against the legal representatives of the judgment-debtor. Further he held that as the property of the judgment-debtor, had been already attached by the Court of the District Judge of Gaya and as there had been an order for its sale, the decree-holder was entitled under the law to follow that property in execution against the sons, the present appellants, and in support of this view he relied on the case of The Sivagiri Zamindar V/s. Tiruvengada 7 M. 339.