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Amina Bibi Vs. Banarsi Prasad - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtAllahabad
Decided On
Judge
Reported inAIR1914All392; (1914)ILR36All439
AppellantAmina Bibi
RespondentBanarsi Prasad
Excerpt:
act no. ix of 1908 (indian limitation act), schedule i, article 182 - execution of decree-'step in aid of execution'--substituted service. - - on the date fixed for hearing the pleader for the decree-holder stated that he would be satisfied, if another attempt were made by the process-server accompanied by a servant of the decree-holder to serve musammat amina bibi......prasad filed an application for execution of his decree against the present appellant, musammat amina bibi, one of the widows of amir ahmad. the decree-holder asked for attachment and sale of certain property in the possession of amina bibi alleging it to have originally belonged to amir ahmad, the judgment debtor. as this application of the 16th of march, 1909, was filed more than a year after the last application for execution the court ordered notice to issue to amina bibi. the notice was not served on her, and on the 2nd of august, 1909, the decree-holder made an application glvinga fresh address and asking for issue of a fresh notice to amina bibi. notice again came back unserved, and on the 24th of august, 1909, the decree-holder again filed a second application asking for.....
Judgment:

Muhammad Rafiq and Piggott, JJ.

1. This appeal has arisen out of proceedings in execution. The decree-holder Banarsi Prasad obtained a simple money decree on the 24th of August, 1900, against one Amir Ahmad. The latter died leaving two widows, a son, a daughter and two paternal uncles as his heirs. He died indebted to a considerable extent and his creditors had obtained decrees against him. Banarsi Prasad made several attempts to execute his decree and it was paid off partially in 1905. On the 16th of March, 1909, Banarsi Prasad filed an application for execution of his decree against the present appellant, Musammat Amina Bibi, one of the widows of Amir Ahmad. The decree-holder asked for attachment and sale of certain property in the possession of Amina Bibi alleging it to have originally belonged to Amir Ahmad, the judgment debtor. As this application of the 16th of March, 1909, was filed more than a year after the last application for execution the court ordered notice to issue to Amina Bibi. The notice was not served on her, and on the 2nd of August, 1909, the decree-holder made an application glvinga fresh address and asking for issue of a fresh notice to Amina Bibi. Notice again came back unserved, and on the 24th of August, 1909, the decree-holder again filed a second application asking for substituted service, on the ground that, as Amina Bibi was a pardanashin lady, it was difficult to serve notice on her in the ordinary manner. On the date fixed for hearing the pleader for the decree-holder stated that he would be satisfied, if another attempt were made by the process-server accompanied by a servant of the decree-holder to serve Musammat Amina Bibi. The request of the pleader for the decree-holder was allowed and notice was issued and served on her. No further steps seem to have been taken after service, of the notice to her until the 12th of July, 1912, when a fresh application was made for execution. By that application the decree-holder sought to attach and sell some portion of the personal property of Amina Bibi, which he described as having originally belonged to the judgment-debtor, Amir Ahmad. Amina Bibi put in objections. She said that the property sought to be attached was her personal property and was not liable to attachment and sale in execution of the decree against her husband. For the decree-holder it was alleged that, even if the property sought to be attached and sold was the personal property of Amina Bibi, it was still liable under the decree against her husband as she had received considerable assets of her husband which she had not accounted for. The learned Subordinate Judge held that the property which the decree-holder was seeking to attach and sell was the personal property of Amina Bibi, but he (the decree-holder) was at liberty to prove his allegation that certain assets of her husband had come into her hand. Subsequently to that order the parties admitted that Musammat Amina Bibi had realized Rs. 30,000, as profits from the landed estate of her husband. She, however, objected to her liability to pay off the decree of Banarsi Prasad on several grounds. She said that the application of the 12th of July, 1912, was barred by limitation and that the profits realized were in respect of property which had been gifted by Amir Ahmad to his other widow, Musammat Haidari, and the realization of profits of that property by Amina Bibi could not be said to be assets of her deceased husband. There were some other objections taken which need not be mentioned here. The learned Subordinate Judge disallowed all objections and allowed execution of the decree to proceed. Musammat Amina Bibi has come up in appeal to this Court and she repeats two of her objections to the execution of the decree. She contends that the application for execution is barred by limitation and that she is liable to the extent of 1/24th of her husband's debt because her share as a widow in the property is only 1/24th We think that neither of the contentions of the appellant has any force The limitation is saved by the application of the 24th of August, 1909. That a similar application has been held to be a step in aid of execution is borne out by the ruling in Pitam Singh v. Tota Singh (1907)I. L. R. 29 All. 301. Her second objection also fails because she is in possession of the assets of her husband and she is liable to the extent of those assets to the creditors of her husband. Her allegation that she will have to account for the assets to the other heirs of her deceased husband is true, but she can always say that she had to pay so much for the satisfaction of the decree of her husband for which all the heirs were liable. The appeal fails and is dismissed with costs.


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