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Lala Har Prasad Vs. Seth Radha Krishan - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported in2Ind.Cas.105
AppellantLala Har Prasad
RespondentSeth Radha Krishan
Excerpt:
civil procedure code (act xiv of 1882), sections 13, 43, 647 - execution proceedings--judgment-debtor's objection--certain property not included in objection by mistake--second objection, whether barred. - .....out of the seven houses, and the objection was that he had acquired these three houses under a deed of gift by his father in his lifetime, and that accordingly they were not liable to be sold in execution of the decree. an issue was framed as to the genuineness of the deed of gift. the decision was in favour of the judgment-debtor and the property was released. just before the sale the judgment debtor came in with a fresh objection, that part of the property which was going to be sold was included in the deed of gift. he alleged that a mistake had been made, and that the particular premises marked a.b.c.d. on the map were really part of the houses which had been released and that they should not be sold. the court allowed the property to be sold, bat directed that the claim of the.....
Judgment:

1. This execution appeal arises out of the following facts A mortgage-decree having been obtained, and the mortgaged property having been sold, the proceeds proved insufficient, and a decree under Section 90 of the Transfer of Property Act was granted to the decree-holder to realise the balance of the mortgage debt from the property of Ganga Prasad. In execution of that decree seven houses were attached. An objection was taken by Seth Radha Kishan, the minor judgment-debtor. The objection applied to three out of the seven houses, and the objection was that he had acquired these three houses under a deed of gift by his father in his lifetime, and that accordingly they were not liable to be sold in execution of the decree. An issue was framed as to the genuineness of the deed of gift. The decision was in favour of the judgment-debtor and the property was released. Just before the sale the judgment debtor came in with a fresh objection, that part of the property which was going to be sold was included in the deed of gift. He alleged that a mistake had been made, and that the particular premises marked A.B.C.D. on the map were really part of the houses which had been released and that they should not be sold. The Court allowed the property to be sold, bat directed that the claim of the judgment-debtor be proclaimed. The result of this of course is that the purchaser whom we believe to be the decree-holder purchased subject to any right which the judgment-debtor might establish. The Court below subsequently found that the houses and premises in dispute were really part of the houses No. 4408 and 4410, and that they were covered by and included in the deed of gift. It accordingly allowed the objection of the judgment-debtor and released the houses and premises mentioned above. The decree-holder comes here in first appeal. He contends first that in the application for attachment and sale he specifically gave the boundaries of the houses and premises in dispute, that the judgment-debtor's objections did not extend to the houses and premises, and that an order for sale was actually made. He says that under these circumstances a further objection on the part of the judgment-debtor could not be made, and he relies upon Section 43 and Section 13 of Act No. XIV of 1882. He farther says that on the facts the Court below was wrong and that it ought to have decided against the judgment-debtor. On the question of fact the Court below has found that there really was a mistake made by the Pairokar of the minor objector, and that the premises now in dispute were really included in the deed of gift and formed part of the houses bearing municipal numbers 4408 and 4410. We have not been referred to the evidence at any length, nor have we been given any sufficient reason to justify our reversing the decision of the Court below, on this question of fact.

2. The argument based upon Section 43 is that the judgment-debtor in his objections ought to have included the houses and premises now in dispute and that under Section 43 ho was bound to do so. Section 43 on the face of it refers only to suits, and the provisions of Section 647 have to be called in aid to make the section apply to claims made other than suits. However, the explanation of that section provides that the section shall not apply to applications for execution of decrees. The appellant contends that the judgment-debtor's objection was not an application for execution, and that therefore Section 43 applies. We do not follow this contention. The objection by the judgment-debtor was a proceeding taken by him. in consequence of and as incidental to an application for execution by the decree-holder. We do not think under the circumstances that Section 43 has any application. Section 13 of the same Act is next relied on. That section provides that no Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit. Now the question whether or not these particular premises were or were not included in the deed of gift, was never in. issue before. Explanation II is relied on which provides that any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. Assuming that this explanation applies to an issue in execution proceedings, it would never have been a ground of defence or attack to have shown that the disputed premises were included in the deed of gift. The issue previously tried was solely the issue as to the validity or invalidity of the deed of gift. We accordingly dismiss the appeal. Under the circumstances we direct that each party should bear their own costs of the appeal.


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