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Bansidhar Vs. Lala Sham Lall - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in71Ind.Cas.1012
AppellantBansidhar
RespondentLala Sham Lall
Excerpt:
civil procedure code (act v of 1908), section 47 - decree against assets of deceased debtor--assets, attachment of--objection by reversioner under order xxi, rule 58--reversioner no party to suit or execution proceedings--objection allowed--suit by decree-holder to make assets liable in execution, maintainability of. - .....was compromised and a decree was obtained by bansidhar against piarey lal. after obtaining this decree bansidhar preferred a claim to the court in which the decree obtained by sham lal was in course of execution and by which the property had been attached for the recovery of the amount of the decree. this objection purported to be one under order xxi, rule. 58 of the code of civil procedure, so that it was an objection by a third party claiming the property attached by the decree-holder. his objection was allowed and, therefore, the present suit was instituted by sham lai, the decree-holder, for a declaration that the property attached, by him was liable to attachment and sale as part of the assets of ram sarup. the claim has been decreed by both the courts below, and the property.....
Judgment:

P.C. Banerji, J.

1. In my judgment there is no force in this appeal. Sham Lal was the creditor of one Ram Samp under a bond. After the death of Ram Sarup his assets were taken possession of by one Piarey Lal. Sham Lal brought a suit on the basis of the bond (which was a simple bond) against Piarey Lal, and obtained a decree which directed the amount of it to be realised, from the assets of Ram Sarup, in the hands of Piarey Lal. After the passing of the decree the present appellant, Bansidhar, brought a suit against Piarey Lal claiming the property of Ram Sarup on the allegation that he was the reversioner to the estate of Ram Sarup and that Piarey Lal had no right to it. The matter was compromised and a decree was obtained by Bansidhar against Piarey Lal. After obtaining this decree Bansidhar preferred a claim to the Court in which the decree obtained by Sham Lal was in course of execution and by which the property had been attached for the recovery of the amount of the decree. This objection purported to be one under Order XXI, Rule. 58 of the Code of Civil Procedure, so that it was an objection by a third party claiming the property attached by the decree-holder. His objection was allowed and, therefore, the present suit was instituted by Sham Lai, the decree-holder, for a declaration that the property attached, by him was liable to attachment and sale as part of the assets of Ram Sarup. The claim has been decreed by both the Courts below, and the property being admittedly the property of Ram Sarup and the debt in respect of which the decree has been obtained by Sham Lal being a debt due by Ram Sarup, the assets were liable. In this appeal it is contended that, after the objection of Bansidhar had been granted by the Execution Court, the only remedy of the decree-holder was to appeal against that order and not to bring a suit to establish his right.

2. This contention is, in my opinion, without force. The appellant, Bansidhar, was no party to the suit in which the decree in favour of Sham Lal was passed. Execution of that decree had not been taken out against him, and he himself came to the Court opposing attachment of the property as a third party who was interested in the property. As I have said above, he purported to make his application under Rule 58 of Order XXI. The proceedings between Sham Lal arid Bansidhar were not proceedings under Section 47 of the Code of Civil Procedure, because he was neither a party to the decree nor a party to the execution proceedings. Therefore, the only remedy of Sham Lai, the decree-holder, was to bring the present suit for a declaration of his right as against Bansidhar, and this declaration has been granted to him by the Courts below. Those Courts, in my opinion, were right and the present suit is not barred by Section 47 of the Code of Civil Procedure. I dismiss the appeal.


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