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Mt. Imtiaz Bibi Vs. Mt. Kabia Bibi - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1929All602; 118Ind.Cas.164
AppellantMt. Imtiaz Bibi
RespondentMt. Kabia Bibi
Cases ReferredBulaqi Das v. Kesri
Excerpt:
- - kabia bibi and a daughter as well as three brothers as his heirs. she was bound to raise this objection if it were good, as she was asserting her own personal rights to the property and was not putting forward the claim of any stranger to the execution proceedings......were brought on the record as the legal representatives of the deceased judgment-debtor. mt. kabia bibi decree-holder proceeded to execute the decree and attached the property of her deceased husband in the hands of his heirs including the share in the possession of mt. imtiaz bibi. no objection appears to have been raised by the latter on the occasion and the property was sold and purchased by the decree-holder mt. kabia bibi herself. mt. imtiaz bibi has now brought the suit for recovery of possession on the ground that it was no part of the assets of the deceased abdul karim and could not hove been validly sold in execution of a money decree against abdul karim. both the courts below have dismissed the suit on the ground that it was barred by section 47, civil p.c.2. it appears to us.....
Judgment:

1. This case has been referred to a larger Bench on account of an apparent conflict between the case of Dulla v. Shib Lal [1917] 39 All. 47 and the case of Bulaqi Das v. Kesri : AIR1928All363 . One Abdul Rahman died in 1917 leaving a widow Mt. Kabia Bibi and a daughter as well as three brothers as his heirs. One of his brother Abdul Karim promptly made a gift of his share which he had inherited in favour of his wife Mt. Imtiaz Bibi. A suit was brought by Mt. Kabia Bibi for recovery of her dower debt against the heirs of the deceased by realization of the amount out of the assets left by him. There can he no doubt that the heirs were liable to pay the dower debt when they took the assets. A compromise decree was passed in favour of Mt. Kabia Bibi against the heirs including Abdul Karim. Abdul Karim died afterwards and his heirs including Mt. Imtiaz Bibi his widow, were brought on the record as the legal representatives of the deceased judgment-debtor. Mt. Kabia Bibi decree-holder proceeded to execute the decree and attached the property of her deceased husband in the hands of his heirs including the share in the possession of Mt. Imtiaz Bibi. No objection appears to have been raised by the latter on the occasion and the property was Sold and purchased by the decree-holder Mt. Kabia Bibi herself. Mt. Imtiaz Bibi has now brought the suit for recovery of possession on the ground that it was no part of the assets of the deceased Abdul Karim and could not hove been validly sold in execution of a money decree against Abdul Karim. Both the Courts below have dismissed the suit on the ground that it was barred by Section 47, Civil P.C.

2. It appears to us that this case is concluded by the ruling in the Full Bench case of Seth Chand Mal v. Durga Dei [1890] 12 All. 313 which has been followed in subsequent cases. There too a simple money decree was passed against a judgment-debtor who died and his legal representatives were brought on the record in execution proceeding to represent him. They raised the question as to a certain property which they said was no part of the deceased's assets in their hands but was their own property. Four out of the five learned Judges held that the case was covered by old Section 244. Civil P.C. Straight, J., on p. 322 remarked that:

When the representative of the deceased judgment-debtor says in regard to the property which he contends is not the property of the deceased judgment-debtor but is his property, that it can rightly be said that he thereby sets up a jus tertii.

3. He admitted that the case would be different if he were trustee or representing some character wholly separate from his personal and individual character. Edge, C.J., on pp. 323 and 324 also pointed out the same distinction and held that:

Where the representative merely asserts that the property sought to be sold is his own property to which he is beneficially entitled by purchase or from its having come to him otherwise than as a representative of the deceased judgment-debtor, it is not a case in which he has set up a jus tertii.

4. The learned Judge also agreed that the case would be different if the representative of the judgment-debtor opposed the execution on the ground that the property vested in him as trustee or as executor of some one else, Brodhurst, J., concurred in the opinion. Mahmood, J., also agreed with that view and on p. 327 pointed out that a distinction was to be drawn between the capacity of the judgment-debtor as representing his own interest which did not vest in him and which one would call a legal jus tertii. The learned Judge held that as soon as a person is impleaded and objects against the execution of the decree he is bound so long as he claims in respect of the property against which execution is sought a right no other than that which vests in him in his own person, he is bound to raise those objections in the execution of the decree and cannot be allowed to reagitate the matter in a regular suit. Tyrrel, J., however dissented. Although in that case the point arose in appeal and before the property presumably was actually sold, the case is a clear authority for the view that the legal representative of a deceased judgment-debtor, when she is asserting that a certain property is her own property and no part of the assets of the deceased in her hand, is raising an objection relating to the execution discharge and satisfaction of the decree within the meaning of Section 47, Civil P.C., and that the question is between the representatives of the parties. In the present case also Mt. Imtiaz ought to have objected to the attachment of the property in her hands on the ground that it was no part of the assets of her deceased husband but had been acquired by her under a gift previous to the attachment. She was bound to raise this objection if it were good, as she was asserting her own personal rights to the property and was not putting forward the claim of any stranger to the execution proceedings. The case in our opinion is therefore fully covered by the ruling in the Full Bench case quoted above which has never been doubted in this Court. It was expressly followed, as it was bound to be, in the case of Dulla v. Shib Lal [1917] 39 All. 47. The only difference between the latter case and the present case is that there the legal representatives were brought on the record before the decree was passed. The principle underlying both is however same.

5. The rulings in the Full Bench cases of Gulzari Lal v. Madho Ram [1904] 26 All. 447 and Bhagwati v. Banwari Lal [1909] 31 All. 82, are not directly in point. We would also hold that the case of Bulaqi Das v. Kesri : AIR1928All363 , does not deal with the point which arises in this particular case and it is not therefore necessary for us to express any opinion on the question decided there. We accordingly dismiss this appeal with costs including in this Court, fees on the higher scale.


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