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Jagannath Prasad Vs. Mt. Jamuna Bai and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1932All263
AppellantJagannath Prasad
RespondentMt. Jamuna Bai and ors.
Excerpt:
- sulaiman, ag. c.j.1. this is an appeal by the decree-holder from an order passed by the execution court allowing the objection of mt. jamuna bai.2. a preliminary objection is taken that no appeal lies from this order as she was not a judgment-debtor.3. hazari lai was the plaintiff's debtor and after his death the plaintiff filed a suit against his daughter's son achheylal alleging that ho was the sole legatee of the deceased under a will executed by him. he did not implead his daughter mt. jamuna bai or any other relation. a money decree was obtained against the assets of the deceased hazari lai which, if any, may be in the hands of achhey lai.4. the decree-holder then tried to execute the decree by attachment and sale of some property in the hands of the deceased's daughter mt. jamuna.....
Judgment:

Sulaiman, Ag. C.J.

1. This is an appeal by the decree-holder from an order passed by the execution Court allowing the objection of Mt. Jamuna Bai.

2. A preliminary objection is taken that no appeal lies from this order as she was not a judgment-debtor.

3. Hazari Lai was the plaintiff's debtor and after his death the plaintiff filed a suit against his daughter's son Achheylal alleging that ho was the sole legatee of the deceased under a will executed by him. He did not implead his daughter Mt. Jamuna Bai or any other relation. A money decree was obtained against the assets of the deceased Hazari Lai which, if any, may be in the hands of Achhey Lai.

4. The decree-holder then tried to execute the decree by attachment and sale of some property in the hands of the deceased's daughter Mt. Jamuna Bai who at once objected and alleged that the property sought to be attached was her own property and no part of the deceased's assets at all. Her objection has been allowed and the decree-holder's application dismissed. It is quite obvious that no appeal lies from the order inasmuch as the (dispute cannot be said to have been one under Section 47, Civil P.C, between the parties to the suit in which the decree was passed. If the objection of Mt. Jamuna Bai was in the nature of an objection by a stranger to the suit under Order 21, Rule 58 the order passed by the Court would be final and no appeal would lie there from. The learned advocate for the decree-holder has cited before us some cases in which it has been laid down that if a party dies during the pendency of the suit and the Court brings one person on the record as his legal representative the decree may be executed against other persons who are in possession of the assets and who may be heirs though they were not impleaded.

5. He has also cited some cases showing that even if after the decree the execution is sought against one heir at first, proceedings may be continued against the other heirs of the deceased. In our opinion neither of these sets of rulings is at all applicable to the case before us. If death takes place during the pendency of a suit it is the duty of the Court under Order 22, Rule 5, to determine who is the legal representative of a deceased plaintiff or a deceased defendant, and a 'legal representative' is defined in Section 2 as meaning a person who in law represents the estate of a deceased person and includes any person who intermeddles with the estate of the deceased. In the same way it is equally clear that no question of substitution of the names of heirs in the ordinary sense in which it is understood arises when the death takes place after the decree. Rule 12, Order 22, expressly provides that nothing in Rules. 3, 4 and 8 of that order shall apply to the proceedings in execution of the decree. The decree holder in such a case therefore is not bound to implead all the heirs in the first instance.

6. The ease before us is one in which the debtor had died before any suit was brought against him. The suit was brought against Achhey Lai who was treated as the heir of the deceased and the decree-was against the assets of the deceased which may be in the hands of Achhey Lai. It is Achhey Lai who is the judgment-debtor under the decree Mt. Jamuna Bai was not a judgment-debtor. If she is setting up her own independent title in the property which is sought to be attached her capacity was that of an entire-stranger to the suit. Her objection was under Order 21, Rule 58 and was not an objection under Section 47, Civil P.C, as there-was no dispute between the parties to the decree or their representatives. A similar-view was expressed in Kaliappan Servai-karan v. Varadarajulu[1910] 33 Mad.75 We agree with, the view expressed therein.

7. It is therefore clear that no appeal lies. The appeal is dismissed with costs.


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