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Abdur Rahman Vs. Shankar Dat Dube - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad High Court
Decided On
Judge
Reported in(1895)ILR17All162
AppellantAbdur Rahman
RespondentShankar Dat Dube
Excerpt:
.....the act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. [deolali cantonment board v usha devidas dongre, 1993 mah.lj 74; 1993 lab ic 1858 overruled]. - in this case it appears to us that no item of the property attached has come into the possession of the legal representative, whose liability under section 234 of the code of civil procedure is expressly limited to the extent of the property of the deceased which has come to his hands and has not been duly disposed of that being so, we think the court below, though for wrong reasons, is perfectly right in refusing to put upon the record the names of the respondents as representatives of the deceased judgment-debtor......which was of the judgment-debtor in his lifetime may not only have come to the hands of his legal representative, but may, before the making of the application under the section have not been duly disposed of by the representative. in this case it appears to us that no item of the property attached has come into the possession of the legal representative, whose liability under section 234 of the code of civil procedure is expressly limited to the extent of the property of the deceased which has come to his hands and has not been duly disposed of that being so, we think the court below, though for wrong reasons, is perfectly right in refusing to put upon the record the names of the respondents as representatives of the deceased judgment-debtor. it seems to be settled law that no.....
Judgment:

Blair, J.

1. It appears to us that the ruling of the Full Bench of this Court in the case of Sheo Prasad v. Hira Lal I.L.R. 12 All. 440, is a binding authority upon the question at issue in this matter. It is needless to follow in detail the erroneous reasons given by the Judge below in dealing with this matter. It is clear to us that this is a case which is really decided by the ruling above referred to. It was there held by the Full Bench that Section 234 of the Code of Civil Procedure applied only to cases in which after the death of the judgment-debtor the decree-holder sought to bring to sale property which was of the judgment-debtor in his lifetime, and which was not at the time of his death under attachment in the suit of the judgment-creditor. In the view of the Court which decided that case Section 234 contemplates that the property which was of the judgment-debtor in his lifetime may not only have come to the hands of his legal representative, but may, before the making of the application under the section have not been duly disposed of by the representative. In this case it appears to us that no item of the property attached has come into the possession of the legal representative, whose liability under Section 234 of the Code of Civil Procedure is expressly limited to the extent of the property of the deceased which has come to his hands and has not been duly disposed of That being so, we think the Court below, though for wrong reasons, is perfectly right in refusing to put upon the record the names of the respondents as representatives of the deceased judgment-debtor. It seems to be settled law that no such representative need be put on the record. Mr. Ghulam Mujtaba is in our opinion entitled to take such further steps in the execution proceedings as he may be advised, and that no impediment can arise from the fact of there not being on the record any legal representative of the deceased judgment-debtor. The appeal is dismissed with cost.

brkitt, J.

2. I concur in the judgment which has been pronounced and desire to add a few words only. The application made by the decree-holder on the 18th of February 1892, and the 5th of March 1893, to bring Raja Shankar Dat and Rani Sahodra Kuar on the record in the execution proceedings was properly rejected by the District Judge, not for the reasons given by him? which, in my opinion, have no bearing on the matter, but because the applications so made were applications for which the law makes no provision, whatsoever. Those applications were apparently modelled on the lines of Section 368 which provides for the substitution of names in the place of the deceased defendant in a suit; but under Act No. VI of 1892 and the recent rulings of their Lordships of the Privy Council such procedure cannot be adopted in execution proceedings. In such proceedings if the decree-holder desires to proceed after the death of the judgment-debtor against property which has not been attached during the lifetime of the judgment-debtor his proper course is that marked out by Section 234 of Act No. XIV of 1882, but if the property has been attached during the lifetime of the judgment-debtor it then comes into the hands of the law and attachment does not abate on the death of the judgment-debtor, and for the purpose of proceeding against, and if necessary selling, that property, it is not necessary to implead any one as a legal representative. It was therefore in this case quite unnecessary to ask for an order to bring the brother and the widow of the deceased judgment-debtor on the record. It was an order which the Court had no jurisdiction to pass, and in refusing to pass it the Court was right, though, as I said before, the reasons it gave for that refusal are wrong and irrelevant.


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