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Durga Prasad and ors. Vs. Shambhu - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported in51Ind.Cas.539
AppellantDurga Prasad and ors.
RespondentShambhu
Excerpt:
civil procedure code (act v of 1908), section 60, proviso, clause (f) - execution of decree--mahabrahman, office of, whether can be sold. - .....(f) of the proviso to section 60 of the code of civil procedure and is, therefore, exempt from sale in execution of a decree. this decision of the court below has been affirmed by a learned judge of this court. he has referred to the authorities on the subject and we deem it unnecessary to repeat them. the only case which is directly in point is the decision of this court in durga prasad v. genda a.w.n. (1889) 169. in that case a learned judge of this court held that the birt mahabrahmani or right to officiate as a priest at the funeral ceremonies of hindus dying within a particular district is a right of personal service within the meaning of section 266 (f) of the code of civil procedure and as such is not liable to attachment or sale in execution of a decree. section 60 of the.....
Judgment:

1. The question raised in this appeal is whether in execution of a simple decree for money what is called Birtacharji can be sold at the instance of the decree holder. This Birt, as we understand it, is the office of Mahabrahman who officiates at funerals of Hindus and performs certain ceremonies. The application for the sale of this description of property has been disallowed by the lower Appellate Court on the ground that it is a right of personal service within the meaning of Clause (f) of the proviso to Section 60 of the Code of Civil Procedure and is, therefore, exempt from sale in execution of a decree. This decision of the Court below has been affirmed by a learned Judge of this Court. He has referred to the authorities on the subject and we deem it unnecessary to repeat them. The only case which is directly in point is the decision of this Court in Durga Prasad v. Genda A.W.N. (1889) 169. In that case a learned Judge of this Court held that the Birt Mahabrahmani or right to officiate as a priest at the funeral ceremonies of Hindus dying within a particular district is a right of personal service within the meaning of Section 266 (f) of the Code of Civil Procedure and as such is not liable to attachment or sale in execution of a decree. Section 60 of the present Code of Civil Procedure corresponds to Section 266 of the old Code. We have not been referred to any case in which this ruling has been dissented from or the correctness of it has been questioned. The policy of the section apparently is to prevent such a compulsory sale as might transfer property of this description to persons disqualified to perform the duties of the office see the observations of Ranade, J., in Rajaram v. Ganesh 23 B. 131 ; 12 Ind. Dec. (N.S.) 87. Reference has been made to cases in which it has been held that a Birt Jijmani belonging to a Mahabrahman may be mortgaged by a Mahabrahman to another Mahabrahman, but that analogy cannot apply to the case of compulsory sale in execution of a decree, where a stranger might be the purchaser and be a person who can never perform the duties of a Mahabrahman. We think that the office of a Mahabrahman or a Birtacharji, as it is called in the present instance, is a right to perform personal service and as such is exempt from attachment and sale in execution of a decree under the provisions of Section 60, Clause (f). We dismiss the appeal with costs.


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