MOHAMMAD TAHAR Vs. MTINTIZAR FATIMA

JUDGEMENT

(1.) This is an appeal from an order passed by the learned Civil Judge of Aligarh in an execution proceeding upon an application made before him purporting to be under Section 47, Civil P.C., in the following circumstances : One Qismat Ali had two wives, Sardar Fatima and Ummat-ul-wahid. By the former he had a son Ali Athar and a daughter Alia Khatoon. By the latter also he had, son Mohammad Tahir and a daughter Aijaz Fatima. These two are the appellants in this Court. It appears that upon Qismat Ali's death some disputes arose between his heirs, and Sardar Fatima and her son Ali Athar instituted a suit against Dmmat-ul-wahid and her two children for a declaration that she was not a legally wedded wife of Qismat Ali and her children were consequently not legitimate children of Qismat Ali. This suit (No. 17 of 1929) was dismissed by the first Court and that decree was upheld in appeal by this Court. The result was that a decree for costs was passed in favour of Ummat-ul-wahid and the two appellants against Sardar Fatima and Ali Athar for Rupees 2514-3-0. In the meantime, a suit (No. 104 of 1931) had been instituted by Sardar Fatima against all the heirs of Qismat Ali, including Ummat-ul- wahid and the two appellants, to recover her dower debt. This suit resulted in a decree for Rs. 10,000 in her favour, but it was passed against the assets of Qismat Ali in the hands of the defendants. It appears that one Irshad I lusain had a simple money decree against Ummat-ul-wahid and in execution of that decree he attached and put to sale the share of Ummat-ul-wahid in the decree for costs to which reference has been made above.

(2.) The present appeal arises out of an application for execution of the decree for costs by Mohammad Tahir and Aijas Fatima. This application was made on 5th January 1935 with the prayer that the slower decree which stood in favour of Sardar Fatima should be attached and the decretal amount due to the applicants should be realized therefrom. It was incidentally mentioned in the application that the dower decree obtained by Sardar Fatima had boon subsequently transferred to her sister Intizar Fatima under a deed of gift. The Court ordered that Intizar Fatima should be definitely arrayed as a party and a notice of the application should be issued to her. A notice was accordingly issued, and it is alleged by the appellants that it was duly served upon Intizar Fatima. The matter came up for hearing on 8 May 1935 but Intizar Fatima did not put in an appearance and the Court proceeded to pass an ex parte order to the effect that the gift in favour of Intizar Fatima was subject to the equities in favour of the applicants and the latter's decree could be set off against the decree for dower which had been transferred by Sardar Fatima to Intizar Fatima by way of gift. This order was further implemented by another order passed by the Court on 22 May, 1935 to the effect that the application for execution should be struck off in full satisfaction. On 4 July 1935 Intizar Fatima filed a petition of objection purporting to be under Section 47, Civil P.C., alleging that no notice had been served upon her and praying for the cancellation of the Court's order dated 8 May 1935. It may be noted here that the orders passed by the Court on 8 and 22 May, respectively had by that date become final. The Court however entertained the application made by Intizar Fatima and proceeded upon that basis to cancel its previous order dated 8 May 1935. It is again to be observed that the other order dated 22nd May 1935 by which the application for execution was struck off in full satisfaction was not challenged and was not definitely cancelled by the Court at any stage. Having cancelled its previous order of 8 May 1935, the Court proceeded to rehear the application made by the appellants in which they claimed that they were entitled to set off their decree against the dower decree which stood in favour of Sardar Fatima. It was then brought to the notice of the Court that the applicants in execution, Mohammad Tahir and Aijaz Fatima, did not fill the same character in both suits in which the cross-decrees had been passed. It may be mentioned here that the dower decree obtained by Sardar Fatima had also been put into execution in the same Court, and that proceeding was pending at the time. The Court accepted Intizar Fatima's contention and proceeded to pass an order on 8 February 1936 that the application in execution which had been made by the appellants should be dismissed inasmuch as the decree which stood in their favour could not legally be set off against the decree obtained by Sardar Fatima. Hence the present appeal.

(3.) Two points have been urged in appeal, firstly, that the lower Court erred in holding that the appellants did not fill the same character in both the suits and hence the decree for costs which they had obtained could not be sot off against the dower decree obtained by Sardar Fatima, and, secondly that the lower Court had no jurisdiction to Hot aside its orders dated 8 and 22 May, 1935 after they had become final. With regard to the first contention, I need only say that it has obviously no force. The decree in favour of Sardar Fatima had been passed against the assets of Qismat Ali. It was not a personal decree against the appellants. The appellants were liable to satisfy that decree only if they had any assets of Qismat All in their possession. On the other hand, the decree for costs which had been passed in their favour was a personal decree against Sardar Fatima. Let us suppose for a moment that the decree obtained by Sardar Fatima was for a smaller amount than that to which the appellants were entitled under the decree for costs in their favour, and that the appellants had no assets of Qismat Ali in their possession. If in that event Sardar Fatima had applied that her decree should be set off against the decree in favour of the appellants, her prayer could not have been granted, because the appellants would naturally have objected that they were not liable for satisfying her decree, except to the extent of the assets of Qismat Ali in (their hands. From this it is perfectly clear to my mind that the appellants did not fill the same character in both the suits as required by Order 21, Rule 18, and hence no objection can be taken to the lower Court's decision that the two decrees could not legally be sot off against each other.