1. This is a decree-holder's appeal arising out of the following circumstances: On the 5th of June 1917, Ramanand Shukul obtained a simple money-decree against Nageshar Pande. On the 30th of May 1920 within the prescribed period of limitation, Nageshar having died on some unspecified date during this interval, the decree-holder attached the ancestral family property in the hands of Chhotey Lal, son of Nageshar, and sought to bring it to sale in satisfaction of his decree. Chhotey Lal filed an objection saying that he knew nothing about the decree in question, that he was certain that his father had never executed any document in favour of Ramanand Shukul, that he was not bound by the terms of the decree obtained against his father only, and that Ramanand had recently been worsted in another litigation in which he had tried to make the objector, Chhotey Lal, liable upon a document alleged to have been executed by his father Nageshar. There was also a suggestion that the application for execution was beyond time, which was obviously not pressed, and could not have been, in view of the dates we have already given. The main plea was that the decree-holder was not entitled to obtain execution against the property attached in the hands of Chhotey Lal, unless he first proved his case over again, that is to say, established by evidence that a debt was in fact due from Nageshar on the date on which the decree was obtained. The Execution Court, referring to the provisions of Section 53 of the Code of Civil Procedure, held that the decree-holder was clearly entitled to proceed with the execution and passed orders accordingly. There was an appeal which was disposed of by the Subordinate Judge of Basti. The Appellate Court has referred to two decisions of this Court, both of which related to a state of facts essentially different. In both cases there was a litigation against the father resulting in a decree, and proceedings in execution were taken against property in which the sons had a joint interest along with the father, while the father was still alive. In such a state of facts, no question arises regarding the interpretation or effect of Section 53 above referred to. The decision of the learned Subordinate Judge is a very good example of the danger of deciding questions of law upon brief statements of principle to be found in the head-notes of reported, cases, without taking the trouble to ascertain the state of facie upon which the decision reded upon an authority was (pronounced. In the present case there was a decree against Nageshar, and Chhotey Lal was the legal representative of Nageshar within the meaning of those words as defined (in Section 2 Clause (11) of the Code of Civil Procedure. Under sections 50 and 53 of 1 the same Code, the decree-holder, Ramanand, was entitled to proceed against any property, in the hands of Chhotey Lal which was liable under Hindu Law for the payment of the debt. Now, the existence of an unsatisfied decree on the date of Nageshar's death was evidence of the existence of a debt which it was the pious duty of Chhotey Lal to satisfy. The ancestral property in the hands of Chhotey Lal was liable, under Hindu Law, for the payment of this debt, unless and until Chhotey Lal could prove, either that there was in f ct no debt at all, or that the debt was tainted with immorality. The lower Appellate Court was clearly wrong. The only question about which there can be any serious argument is whether the Trial Court, in any way, treated the objector with undue harshness, or shut him out from any reasonable opportunity of producing evidence. It seems to us that Chhotey Lal at no time offered to produce evidence before the Trial Court. He wanted a decision that the Execution Court could not proceed without the decree-holder's proving the debt all over again, as if he were now suing for the first time. That point was rightly decided against him and the First Court's order directing execution to proceed necessarily followed. It has never been alleged by Chhotey Lal that there was a debt for which he was not liable, because it had been borrowed for what the Hindu Law regards as immoral purposes. Consequently, he cannot ask the Court to offer him an opportunity of proving a fact which he never alleged. On the question of the existence of the debt, we repeat that we do not see that he offered any evidence. We accordingly allow this appeal, set aside the order of the lower Appellate Court and restore that of the Court of first instance, with costs throughout.
2. I entirely agree. I am quite satisfied by the form o' the original application that the applicants had no case and that they merely wrapped up a vague collection of allegations raising points of law in the hope of creating delay and difficulty. Onus of proof is of no importance when both parties produce evidence. In this case the decree-holder had his decree. The sons could have given any evidence of their own or of any other witness which they possessed, to show that the debt was not one for which the property was liable under Hindu Law. Judges in the Court below would find it a simple and effective method when a question of onus of proof is raised, to ask the Pleader or Vakil, who raises it, whether he is going to call any evidence. If he says, yes, he should order him to call his evidence and see that the evidence is closed, before any such question is discussed. When the evidence is closed the question, if not by that time entirely irrelevant, can be decided, and even if there is an appeal, it is unnecessary to remand the case, because all the evidence has already been taken. If, on the other hand, the learned Counsel says that he is not going to call any evidence, the question of law is ripe for decision. In this case, if the sons deckled to call no evidence, they were bound to fail. I am satisfied that they had no evidence to call. I agree in the order proposed.