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Baru Mal and ors. Vs. Sher Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Judge
Reported in14Ind.Cas.55
AppellantBaru Mal and ors.
RespondentSher Singh and ors.
Excerpt:
mortgage-decree against heirs of mortgagor - mortgaged property not sufficient to satisfy decree--personal decree against the heirs to the extent of assets left by mortgagor deceased--civil procedure code (act v of 1908), order xxxiv, rule 6. - - 89. 4. in our opinion, the contention of the learned counsel for the appellants is perfectly sound......was not sufficient to satisfy the decree and, therefore, the decree-holders applied under order xxxiv, rule 6, for a decree against the assets of the deceased in the hands of the respondents.2. both the courts dismissed the application holding that no personal decree could be passed against the heirs.3. in second appeal, it is contended that a decree should have been passed against the property of the mortgagors of which the respondents may be in possession as their heirs. in support of the contention, reliance is placed on mohan lal v. bilaso 14 a. 512 and mazzem hossein v. sarat kumari 11 c.l.j. 357 at p. 360 : 14 c.w.n. 433 : 5 ind. cas. 89.4. in our opinion, the contention of the learned counsel for the appellants is perfectly sound.5. we, therefore, set aside the decrees of the.....
Judgment:

1. Tudraj and Musammat Shakuri mortgaged certain property. A decree was obtained against their heirs. The property was sold in execution of that decree on the 20th June 1909. The amount realized was not sufficient to satisfy the decree and, therefore, the decree-holders applied under Order XXXIV, Rule 6, for a decree against the assets of the deceased in the hands of the respondents.

2. Both the Courts dismissed the application holding that no personal decree could be passed against the heirs.

3. In second appeal, it is contended that a decree should have been passed against the property of the mortgagors of which the respondents may be in possession as their heirs. In support of the contention, reliance is placed on Mohan Lal v. Bilaso 14 A. 512 and Mazzem Hossein v. Sarat Kumari 11 C.L.J. 357 at p. 360 : 14 C.W.N. 433 : 5 Ind. Cas. 89.

4. In our opinion, the contention of the learned Counsel for the appellants is perfectly sound.

5. We, therefore, set aside the decrees of the Courts below and give the plaintiffs-appellants a decree under Order XXXIV, Rule 6, against the respondents, to the extent of the assets of the mortgagors in their hands.

6. The appellants are entitled to their costs, which in this Court will include fees on the higher scale.


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