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Mohammad Yusuf Vs. Musammat Amtul Habib - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in95Ind.Cas.31
AppellantMohammad Yusuf
RespondentMusammat Amtul Habib
Cases ReferredRam Kirpal v. Rup Kuari
Excerpt:
res judicata - execution proceedings. - .....out of au execution proceeding, and the preliminary question for consideration is whether the decree-holder has realised the decretal money in whole or in part by selling a portion of the property, which was liable for its payment. the decree-holder, musammat amtul habib, is the widow of rahim baksh, who died leaving certain heirs who took possession of his estate. musammat amtul habib tiled a suit for the recovery of her dower against them and got a decree for rs. 5,000 on the 15th july 1912 enforceable against the assets left by rahim baksh deceased. in the plaint the lacy is said to have stated that if, after the payment of her dower debt, any assets of her deceased husband were left, she would afterwards sue for the recovery of her one-fourth share of the same.2. this decree has.....
Judgment:

1. This appeal arises out of au execution proceeding, and the preliminary question for consideration is whether the decree-holder has realised the decretal money in whole or in part by selling a portion of the property, which was liable for its payment. The decree-holder, Musammat Amtul Habib, is the widow of Rahim Baksh, who died leaving certain heirs who took possession of his estate. Musammat Amtul Habib tiled a suit for the recovery of her dower against them and got a decree for Rs. 5,000 on the 15th July 1912 enforceable against the assets left by Rahim Baksh deceased. In the plaint the lacy is said to have stated that if, after the payment of her dower debt, any assets of her deceased husband were left, she would afterwards sue for the recovery of her one-fourth share of the same.

2. This decree has been under execution more than once. The judgment debtors paid Rs. 4,268 on the 7th October 1912, and subsequently sold certain property left by Rahim Baksh to the extent of their, three-fourths share therein. An application was made by the decree holder for the recovery of the balance of her decree which was met by the judgment-debtors with the plea that the' balance represented the one-fourth share of her own liability for, the decretal debt' chargeable on that portion of the estate to which she was entitled as a widow of Rahim Baksh under the Muhamtoadan Law. The Court executing the decree allowed that objection but on appeal that order was set aside. There was a further appeal to this Court which by its decision dated the 11th May 19l5 upheld the order of the lower Appellate Court, subject to the condition that in the event of a suit being brought by the present decree-holder to recover her share in the estate of her deceased husband, of which she alleged herself not to be in possession, the matter in dispute would be adjusted, or in other words, the liability of the decree-holder, for the one-fourth share of the dower debt, chargeable on that portion of the estate, to which she would be entitled tinder the Muhammadan Law, could be taken into consideration.

3. Further proceedings in execution were thereafter taken by the decree-holder; and in one of those proceedings an objection was again filed by Muhammad Yusaf, one of the judgment debtors, that the decree-holder had already transferred by mortgage and sale her share in a portion of the property left by her husband and that the decree has in effect thus been discharged. That objection does not appear to have been pressed before the Subordinate Judge of Saharanpur, in whose Court the execution proceeding was pending, and was disallowed by him on the 14th January 1919. In 1921 there was another application for the execution of the decree and it is admitted that that application was struck off for default on the 25th May 1922.

4. The present application for execution was filed on the 5th July 1924 for the realisation of the balance of the decretal money, said to amount to Rs. 1,880-40, by the arrest and imprisonment of Muhammad Yusaf, one of the judgment-debtors. The allegation of the decree-holder was that Muhammad Yusaf had dishonestly transferred the estate, which had devolved on him, to some of his relations with a view to evade the payment of the money due under the present decree, and that he was, therefore, personally liable for the payment of the remaining amount under Section 52 of the C. P. C. To this application Muhammad Yusaf filed certain objections, only one of which forms the subject matter for consideration in the present appeal. That objection was that the decree-holder had realised the amount decreed by several transactions, the details of which were given by the objector in his petition of objection. The dates of these transactions were not given; but we are informed that some of these transactions were of dates subsequent to the 19th September 1918, the date on which the objection disposed of on the 14th January 1919 was filed.

5. The learned Counsel for the decree-holder, however, points out that in the execution proceedings instituted in 1921 an objection was filed by Muhammad Yusaf on the 5th November 1921, objecting to the decree being executed against him and asserting that the decree-holder had realised the balance of the decree by the sales of certain property appertaining to her share, which was liable for the payment of the decretal money along with the rest of the property left by Rahim Baksh, her husbands It appears that that objection was disallowed on the 6th May 1922 partly on the ground that it was doubtful whether, the decree-holder had succeeded in obtaining possession over her full share of the property and partly on the ground that although she had made certain transfers of the property left by her husband, a Court executing the decree could not go behind the decree in an execution proceeding, and that Muhammad Yusuf could be made liable to the extent of the property of the deceased parted by him under Section 52 of the C. P. C. That order does not specify the dates of the sales which were then in question.

6. It is urged on behalf of Muhammad Yusuf that even since the date of that order there have been other sales effected by the decree-holder, which ought to be taken into account in reducing his liability under the decree. But as pointed out by their Lordships of the Privy Council in Ram Kirpal v. Rup Kuari 6 A. 269 : 11 I. A. 37 : 4 Sar. P. C. J. 489 : 3 Ind. Dec, (N. S.) 718 (P. C), where a Court decided the question raised in the course of an execution proceeding relating to the true construction to be placed on a decree or order that decision becomes final between the parties as an interlocutory order in the suit and the matter cannot be re-opened in a subsequent execution proceeding. Rightly or wrongly the Court executing the decree came to the conclusion when it passed its order of the 6th May 1922, that the sales could not be taken into consideration in reducing the amount due under the decree; and that order having become final, the principle then recognised operates as a bar to the determination of the same question the present execution proceeding. It appears that the judgment-debtor has paid the amount for which execution was applied for into the Court below and the payment of that amount has been held in abeyance pending the disposal of this appeal. The objection now raised being not maintainable, the decree-holder is entitled to the amount deposited and no further action is necessary. We dismiss the appeal with co3ts including fees in this Court on the higher scale.


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