MT CHAMPA DEVI Vs. PTSANSAR CHAND

JUDGEMENT

(1.) This is a first appeal by a judgment-debtor in an execution proceeding, whose objection to the execution of a decree by attachment and sale of certain property has been rejected by the learned First Civil Judge of Saharanpur. The facts of the case are as follows: The appellant, Mt. Champa Devi, is the sister of one Karta Kishen, who held a mortgage from two ladies named Durga Dasi and Muthri, who wore the widows of one Suraj Singh. Some time after the death of Karta Kishen, his widow Mt. Bhagwati, who had succeeded to his estate, brought a suit on the foot of that mortgage and obtained a decree against one of the mortgagors who was then alive, namely Durga Dasi. Now it appears that Suraj Singh, the husband of Durga Dasi and Muthri the mortgagors, had another wife named Mt. Sarda Devi, and he had executed a gift in her favour in respect of his property. Sarda Devi executed a will in favour of Durga Dasi and Muthri. The construction of that will was a point in issue in this Court in Sansar Chand V/s. Mt. Durga Dasi Reported in and it was finally decided in that case that the will executed by Sarda Devi conferred only a life estate upon Durga Dasi and Muthri, with the remainder to Sansar Chand, who is the respondent in the present appeal. When Mt. Bhagwati obtained a decree on the foot of the mortgage stated above, the respondents Sansar Chand brought a suit for a declaration that the decree did not bind or affect his interest in the property covered by it. His suit was dismissed by the trial Court on the ground that he had no interest in the property which could entitle him to bring the suit; but it was held by this Court, as stated above, that under the will executed by Sarda Devi he had a vested interest in the property covered by the will, which included the property coveted by the mortgage made by Durga Dasi and Muthri in favour of Karta Kishen. It was further decided by this Court in the same case that the mortgage made by Durga Dasi and Muthri was invalid because their power of alienation was limited by the will to certain definite purposes. During the pendency of that suit Mt. Bhagwati, the defendant, died and the present appellant Mt. Champa Devi was brought on the record as her legal representative. The respondent finally obtained a decree from this Court in First Appeal No. 58 of 19291 with costs against Durga Dasi and the present appellant Champa Devi. It appears that an application was made on behalf of the appellant to this Court that the decree was not properly framed inasmuch as it placed personal responsibility upon her. This application was considered by the learned Judges who had decided the first appeal and they passed the following order upon it: The judgment delivered by this Court in First Appeal No. 58 of 19291 allowed the appeal with costs. One of the original respondents in the appeal, Mt. Bhagwati, had died during the pendency of the appeal. At the instance of the appellant her daughter (this appears to be a mistake) Champa Devi was brought on the record as her legal representative. The judgment must be construed as awarding costs to the appellant against the respondents, including Mt. Champa Devi in her capacity as a legal representative of Mt. Bhagwati. The decree should be so framed as to make it clear that costs so far as they have been decreed against Mt. Champa Devi are recoverable from the assets of Mt. Bhagwati whose estate she represents. The decree shall be corrected as prayed.

(2.) I have considered it necessary to set out the order in extenso because an argument raised on behalf of the appellant turns upon the correct interpretation of its terms. The decree as amended by this Court was put into execution by the respondent by means of an application dated 9 February 1935. In that proceeding a certain house was attached, whereupon the appellant made an objection that the property formed part of the assets of Karta Kishen and not of the assets of Mt. Bhagwati, and was therefore not liable to attachment and sale in execution of the decree. This objection has been dismissed by the learned First Civil Judge of Saharanpur, and hence this appeal.

(3.) The argument on behalf of the appellant resolved itself into two points, firstly, that the decree sought to be executed was a personal decree against Mt. Bhagwati and hence it cannot be executed against any property which forms part of the assets of Karta Kishen and, secondly, that the execution Court was bound to interpret. the order passed by this Court in its plain significance, and if it had done so, it could not but have held that the decree was eon-fined to the assets of Mt. Bhagwati and could not take effect against the property which had been attached because it forms part of the assets of Karta Kishen. The respondent's contention, on the other hand, is that the suit brought by the respondent for a declaration that the decree obtained on the foot of the mortgage in favour of Karta Kishen was void as against the respondent, was really a suit directed against the estate of Karta Kishen, and Mt. Bhagwati filled only a representative character in that suit, being the person who represented the estate of Karta Kishen. It is further argued that if Mt. Bhagwati had remained alive and the decree for costs had been passed against her, it could have been realized from any part of her husband's estate in her hands, and if any part of her husband's estate had been seized and sold in execution of the decree, the whole proprietary interest and not merely the widow's interest of Mt. Bhagwati would have passed to the purchaser. It is argued that it follows logically and necessarily from that proposition, if accepted, that the property in dispute which forms part of the estate of Karta Kishen in the hands of the present appellant is also liable to be seized and attached in execution of the decree for costs obtained by the respondent. Lastly, it is contended that the order passed by this Court by which the decree originally framed in First Appeal No. 5b of 1929 was amended really intended to provide that there should be no responsibility upon the present appellant in her personal capacity or upon any property in her possession in that capacity.