BHARATESWARI DAS Vs. BHAGABAN CHANDRA CHAKRABURTY

JUDGEMENT

(1.) This is an appeal by the decree-holder against an order of the Subordinate Judge modifying the order of the Munsiff by which he directed that the decree-holder could only proceed to execute the decree for only one-half of the decretal amount.

(2.) The dispute between the parties arose in this way. There were two sisters Bharateswari and Jagneswari, of whom Bharateswari is now surviving and she is the appellant before us. It appears that they were dispossessed of a certain property and those two sisters obtained a decree for recovery of possession and mesne profits against the judgment-debtors on 23rd September 1916. On 19 October 1916 the land for which the decree for possession and mesne profits was obtained was sold to one Purna Chandra Das by the two sisters. The final decree ascertaining the mesne profits was made by the Court on 15 September 1919 Against that decree there was an appeal and a second appeal, both of which were dismissed. During the pendency of the appeal Jagneswari died and her sons ware brought on the record at the instance of the judgment-debtors. Bharateswari presented a petition to the effect that she was the legal representative of her sister and had obtained her interest in the decree by survivorship. The question does not appear to have been decided by the Court. After the final dismissal of the appeal by the judgment-debtors against the part of the decree ascertaining mesne profits Bharateswari made an application for execution of the entire amount of the decree on 7 November 1921, and the present appeal arises out of that application.

(3.) The Munsiff allowed the application after rejecting the objection of the judgment-debtors. The objection of the judgment debtors appears to have been twofold, first that they have paid half of the decretal amount to the guardian of the minor sons of Jagneswari and that certificate of satisfaction had been made by the executing Court to that extent and therefore Bharateswari is not entitled to execute the entire decree. The second objection was that this money in the shape of mesne profits was the separate property of Jagneswari as her stridhan which after her death would go to her heir and would not follow the estate. It is necessary to mention that the two sisters had inherited the estate of their father with regard to which the decree for mesne profits was obtained. The Munsiff, as I have already said, held that Bharateswari was entitled to execute the entire decree. With regard to the question of satisfaction ha seems to have held that there was no real satisfaction because the guardian of the minor sons of Jagneswari seems to have filed a petition of disclaimer as regards the receipt of money. In any ease he held that that payment even if it had bean made to the father of the minor sons of Jagneswari would not prevent Bharateswari from executing the decree. Th9 learned advocate for the respondents contends that when there is that certificate of payment of half of the decretal amount the Court could not go behind that order or set aside the previous order of the executing Court. The short answer to that is that the judgment-debtors could not pay any amount as his share to a decree-holder on the record. The decree was never divided into two halves. The order admittedly was not acquiesced in by Bharateswari and it does not appear that she was given notice of this payment and certificate. That being so she is entitled to contest the certificate and the Munsiff was right in holding that she is not bound by it.