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Sayed Daood Ali Shah, Minor Through S. Wazir Ali Shah and ors. Vs. Sayed Hayat Ali Shah - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported inAIR1920All56; 58Ind.Cas.711
AppellantSayed Daood Ali Shah, Minor Through S. Wazir Ali Shah and ors.
RespondentSayed Hayat Ali Shah
Excerpt:
execution of decree - objection disallowed--same objection, whether can be taken again. - - the record of the case having been sent for the application for execution was streak off on the ground that the decree-holder had failed to deposit necessary costs. the learned subordinate judge who decided that case held that hayat ali shah was personally liable but that his transferees were not liable inasmuch as the execution case having been struck off, the attachment had ceased to be effective and, therefore, the transfers made by hayat ali shah were perfectly valid.1. this is decree holders' appeal arising out of an application for exaction of a decree for mesne profits. it appears that on the death of one mir khan, who owned some immoveable property, one of his legal heirs, musammat bibi jan, brought a suit for the recovery of possession of her legal share against her co-heirs and obtained a degree. she had also claimed mesne profits, but the determination of the amount of mesne profits was reserved for the execution department. on the 28th of august, 1905 a decree for mesne profits was passed in her favour. in the meantime, it appears that one ganga prasad, who was a mortgagee of a 5-biswa share in village tatarpur from mir khan, had brought a suit for sale on foot of his mortgage-deed against all the beirs of mir khan including the present.....
Judgment:

1. This is decree holders' appeal arising out of an application for exaction of a decree for mesne profits. It appears that on the death of one Mir Khan, who owned some immoveable property, one of his legal heirs, Musammat Bibi Jan, brought a suit for the recovery of possession of her legal share against her co-heirs and obtained a degree. She had also claimed mesne profits, but the determination of the amount of mesne profits was reserved for the execution department. On the 28th of August, 1905 a decree for mesne profits was passed in her favour. In the meantime, it appears that one Ganga Prasad, who was a mortgagee of a 5-biswa share in village Tatarpur from Mir Khan, had brought a suit for sale on foot of his mortgage-deed against all the beirs of Mir Khan including the present plaintiff and had obtained a decree for sale. After Bibi Jan had obtained her decree for possession, the share in village Tatarpur was sold by Ganga Prasad on account of his decree and purchased by Hayat Ali Shah. The latter was made a party to the proceeding relating to the ascertainment of the amount of mesne profits. On the 23rd of July 1906, the plaintiff decree -holder attached the 5-biswa share in village Tatarpur. Objections were raised by some other judgment-debtors and an appeal came to the High Court; the record of the case having been sent for the application for execution was streak off on the ground that the decree-holder had failed to deposit necessary costs. When the record was returned a fresh application for execution was put in against Hayat Ali Shah and others, but this time an objection was made by Hayat Ali Shah that he had, on the 28th August 1905, gifted his share in village Tatarpur to his moter. The mother objected that the had sold it on the 16th of February 1909 to one Ram Prasad, and Ram Prasad objected that he was not liable to pay any mesne profits at all. It appears that the objection of Ram Prasad was allowed. On this, the plaintiffs' heirs brought a suit and claimed that they were entitled to put the share in village Tatarpur up for sale in execution of their decree for mesne profits. The learned Subordinate Judge who decided that case held that Hayat Ali Shah was personally liable but that his transferees were not liable inasmuch as the execution case having been struck off, the attachment had ceased to be effective and, therefore, the transfers made by Hayat Ali Shah were perfectly valid. The decree holders, who were plaintiffs in that suit, appealed to the High Court. On appeal the High Court held that the attachment had really continued and that the two transfers made by Hayat Ali Shah and his mother were absolutely void, and that the decree holders were entitled to proceed to realise their money from Hayat Ali Shah by sale of his share in Tatarpur. The High Court in its judgment, dated the 1st of June 1915, held: 'We think the Court below was wrong in holding that the property was not under attachment when the gift in favour of the judgment-debtor's mother was made. That gift having been made during the pendency of an attachments was void against the attaching creditor and the sale made by the donee falls with it.' The High Court gave an opportunity to Hayat Ali Shah to apply for an amendment of the decree if he was right in his contention that the decree for mesne profits as against him was wrong. An application was made on his behalf but it was rejected. The High Court then, ultimately, allowed the appeal, set aside the decree of the Court of first instance and decree d the plaintiffs' suit with costs. On this, the decree-bolder have again applied for execution of their decree against Hayat Ali Shah by sale of the 5-bitwa share in village Tatarpur, Hayat Ali Shah raises the same objections over again and says that he is not liable to pay any mesne profits. The learned Subordinate Judge has allowed his object ions oh two grounds; (1) He has held that Hayat Ali Shah was not legally liable to pay the amount of the mesne profits; and (2) he is further of opinion that the decision in the declaratory suit does not operate as res judicata between the parties. The decree-holders appeal to this Court. In our opinion, although it is true that Hayat Ali Shah should not have been made liable for the mesne profits inasmush as he had purchased this property in execution of a mortgage-decree against the heirs of Mir Khan including the original plaintiff Bibi Jan, yet we cannot ignore the fast that the decree for mesne profits was ultimately passed as a decree against him also and, further, we are also of opinion that the matter has been conclusively decided in the previous litigation. The relief claimed by the present plaintiffs in the previous suit was a declaration that they were entitled to sell this very property in execution of their decree for mesne profits as against Hayat Ali Shah. The suit was decree d by the High Court. We must take it that the decree -holders obtained the relief which they had claimed. It in true that in a case where a declaration is obtained by a decree holder, but for some reason or other the property is not sold, then in a dispute which may subsequently take place between a judgment-debtor and his transferee, the decision may or may not operate as res judicata; but that point is not before us now. In the present proceeding the very decree-holders who had obtained a declaration, are seeking to execute their decree. We are of opinion that it is not open to Hayat Ali Shah to raise the same objection over again. He has no right to raise the objection that the decree holders are not entitled to execute the decree. We adoringly set aside the order of the Court below and decree the appeal. We dismiss the judgment debtors' objections with costs.


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