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Bharath Indu and ors. Vs. Musammat Tilok Kunwar - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1917All166(2); 40Ind.Cas.47
AppellantBharath Indu and ors.
RespondentMusammat Tilok Kunwar
Excerpt:
execution - amendment of decree--person not judgment-debtor made judgment-debtor--decree, whether can be executed ago inst such person. - - on the 18th of may 1892 the case was decided and an ex parte decree was granted against gobind singh who alone was held liable, and the suit as against jagmohan singh failed......property. on the 18th of may 1892 the case was decided and an ex parte decree was granted against gobind singh who alone was held liable, and the suit as against jagmohan singh failed. in the decree it was set forth that if the mortgaged property was insufficient to satisfy the debt, the balance should be recoverable out of the other properties of the judgment-debtor who was the brother of raghubir singh. this decree was subsequently set aside, the suit was re-heard and on the 13th of june 1896 it was decreed as against gobind singh alone. on the 12th of june 1899 the decree was confirmed. on appeal on the 17th of july 1899 an order absolute was made, the mortgaged property was sold on the 22nd of march 1900 and the sale was confirmed on the 20th of july 1900. an application was made.....
Judgment:

1. The facts out of which this appeal has arisen are as follows:-- In the year 1891 a suit for sale on a mortgage was brought against two persons, Gobind Singh and Jagmohan Singh, the minor son of Raghubir Singh. Of these two persons Jagmohan Singh pleaded that he was no longer a member of the family as he had been adopted into another family and had no interest in the mortgaged property. On the 18th of May 1892 the case was decided and an ex parte decree was granted against Gobind Singh who alone was held liable, and the suit as against Jagmohan Singh failed. In the decree it was set forth that if the mortgaged property was insufficient to satisfy the debt, the balance should be recoverable out of the other properties of the judgment-debtor who was the brother of Raghubir Singh. This decree was subsequently set aside, the suit was re-heard and on the 13th of June 1896 it was decreed as against Gobind Singh alone. On the 12th of June 1899 the decree was confirmed. On appeal on the 17th of July 1899 an order absolute was made, the mortgaged property was sold on the 22nd of March 1900 and the sale was confirmed on the 20th of July 1900. An application was made for a personal decree under Section 90 of the Transfer of Property Act as against Gobind Singh alone. Either on the 22nd or 30th of September a decree was passed as against Gobind Singh alone and in execution of that decree certain pro-perty was attached.

2. Musammat Tilok Kunwar, the widow of Jagmohan Singh, raised objection to the attachment on the ground that the property was hers and was not liable to sale in execution of the decree. Her objection was allowed on the 4th of March 1911. No suit was brought by the decree-holder within the period of one year allowed by law and that order became final. On the 18th of September 1911 the decree-holder made an application, ostensibly for amendment of the decree which he had obtained in September 1900 against Gobind Singh. The application was to the effect that the name of Musammat Tilok Kunwar, the widow of Jagmohan Singh alias Man Kunwar, might be added in the decree as judgment-debtor. Notice was apparently issued but not served personally on the lady. A notification was then put in a local newspaper, the Leuder, and an ex parte order was passed on the 25th of June 1913 under which her name was added to the decree. On the 2nd of March 1914 an application for execution was made as against Tilok Knnwar. She objected. The lower Court disallowed the application on the ground that it was barred by time. The decree-holder appeals. There is no explanation of the order of the 25th June 19 3, nor can it be understood on what ground it was made. There was a decree as against Gobind Singh alone and that application could in no way be treated as an application for amendment of the decree. It is quite clear that Musammat Tilok Kunwar had no information of the application and the whole step appears to be a pure fraud. There is not in fact, and there has not at any time been, a decree against Tilok Kunwar which can be put into execution against her. In our judgment she was fully justified in coming into Court and objecting to the matter, she having been made a party to the application. Apart from the question of limitation the Court below would have been fully justified in refusing to put the decree into execution on the simple ground that the name of Musammat Tilok Knnwar was fraudulently added to the decree without any decree having been passed against her. The appeal fails and is dismissed with costs, including fees on the higher scale.


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