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Kalian Das and ors. Vs. Bhawani Shankar and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in9Ind.Cas.631
AppellantKalian Das and ors.
RespondentBhawani Shankar and ors.
Excerpt:
civil procedure code (act v of 1908), section 53 - decree against legal representative--ancestral property, whether liable to be attached. - .....ancestral property, which after his death had passed by right of survivorship to his sons. the decree-holders have now applied for the sale of certain property; and it has been found, and the finding is not questioned, that this properly is ancestral property. the learned subordinate judge, however, applying the provisions of section 53 of the code of civil procedure has ordered the sale of devi das's share of this property. we are of opinion that this order of the learned subordinate judge is erroneous he was bound to give effect to the decree made under section 90; and as we read that decree it only empowered the decree-holders to proceed against such property as belonged to devi das as his own self-acquired property and not against ancestral property. the parties are bound by this.....
Judgment:

1. The facts connected with this appeal are these. The decree-holders-respondents obtained a decree for sale under Section 88 of the Transfer of Property Act against one Debi Das, his sons and grandsons. The mortgaged property was sold by auction but as the proceeds of the sale did not satisfy the whole amount of the decree an application for the recovery of the balance under Section 90 was filed. This application was made against the legal representatives of Devi Das, he having died in the meantime. The Court decided that having regard to the decree under Section 88. the person and property of the heirs of Devi Das would not be liable, but that the amount claimed could be recovered only from such properly as belonged solely to Debi Das. A decree was drawn up accordingly. This decree directs the realisation of the balance of the original decree from the properly of Debi Das. Reading the decree by the light of the judgment, it is clear that what the Court directed by the decree was that the amount of it should be realised only from such property as belonged to Debi Das personally and not from ancestral property, which after his death had passed by right of survivorship to his sons. The decree-holders have now applied for the sale of certain property; and it has been found, and the finding is not questioned, that this properly is ancestral property. The learned Subordinate Judge, however, applying the provisions of Section 53 of the Code of Civil Procedure has ordered the sale of Devi Das's share of this property. We are of opinion that this order of the learned Subordinate Judge is erroneous He was bound to give effect to the decree made under Section 90; and as we read that decree it only empowered the decree-holders to proceed against such property as belonged to Devi Das as his own self-acquired property and not against ancestral property. The parties are bound by this decree and the Court cannot go behind it. Consequently the decree holders were not entitled to proceed against property which has been found to be ancestral property. We allow the appeal, set aside the order of the Court below and dismiss the application for execution, The appellants will have their costs in this Court and in the Court below including fees in this Court on the higher scale.


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