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Nawalmal and ors. Vs. Sagarmal and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtRajasthan High Court
Decided On
Case NumberCivil Revn. Nos. 29 and 63 of 1962
Judge
Reported inAIR1964Raj122
ActsCode of Civil Procedure (CPC) , 1908 - Sections 73
AppellantNawalmal and ors.
RespondentSagarmal and ors.
Appellant Advocate M.L. Joshi and; Krishnamal, Advs.
Respondent Advocate Hastimal, Adv.
Cases ReferredRamzankhan v. Seth Hiralal
Excerpt:
- - 1. these are two connected revision applications which can best be disposed of by one judgment......decree against ganeshmal and amarchand which they put into execution against amarchand and smt. atri in execution case no. 102/61. they had another decree against amarcand alone which was also put into execution. nawalmal and others obtained a decree against amarchand and against the assets of ganeshmal in the hands of amarchand which they also put into execution. but smt. atri was not impleaded as a party to the execution case, non-petitioners nos. 7 to 34 had also obtained money decrees against amarchand and against the assets of ganeshmal in the hands of amarchand which were also put into execution against amarchand alone.3. the main question which arises for decision in these revision applications is whether the decree-holders who had not filed execution applications against smt......
Judgment:

Jagat Narayan, J.

1. These are two connected revision applications which can best be disposed of by one judgment.

2. Ganeshmal and Amarchand constituted a joint Hindu family. They owned two houses which were attached before judgment under Order 38, Rule 5, Civil Procedure Code in a suit instituted against them by one Sagarmal. 'A decree in the suit was passed against Ganeshmal and Amarchand on 26-10-1957. Thereafter Ganeshmal died leaving Amarchand and a daughter Smt. Atri. In view of the provisions of the Hindu Succession Act, Ganeshmal's share in the joint family property belonging to Ganeshmal and Amarchand devolved on Smt. Atri and Amarchand. Amarchand was thai owner of half of the joint family property during the life time of Ganeshmal. On the death of Ganeshmal, his share devolved equally on Smt. Atri and Amarchand. In the result, Smt. Atri became the owner of the l/4th share in the two houses on the death of Ganeshmal and the balance 3/4th share is owned by Amarchand. Sagarmal filed an application for execution of the decree after the death of Ganeshmal against Amarchand and Smt. Atri. The two houses were sold for Rs. 28,211/-/-. Out of the sale proceeds Smt. Atri was the owner of Rs. 7.052/12/- and Amarchand was the owner of Rs. 21,153/4/- subject to the attachment.

Non-petitioners Nos. 2 to 6 had one money decree against Ganeshmal and Amarchand which they put into execution against Amarchand and Smt. Atri in execution case No. 102/61. They had another decree against Amarcand alone which was also put into execution. Nawalmal and others obtained a decree against Amarchand and against the assets of Ganeshmal in the hands of Amarchand which they also put into execution. But Smt. Atri was not impleaded as a party to the execution case, Non-petitioners Nos. 7 to 34 had also obtained money decrees against Amarchand and against the assets of Ganeshmal in the hands of Amarchand which were also put into execution against Amarchand alone.

3. The main question which arises for decision in these revision applications is whether the decree-holders who had not filed execution applications against Smt. Atri are not entitled to raleable distribution in that part of the assets of Ganeshmal obtained by the sale of the two houses which have vested in Smt. Atri as the heir of her father Ganeshmal. The executing court was of the opinion that they are not so entitled. This decision is in my opinion, correct. It is obvious that the property which now belongs to Smt. Atri cannot be taken in execution of any decree against Ganeshmal unless she is joined as a party to the execution application. The decision in Ramzankhan v. Seth Hiralal, 1961 Raj LW 28 : (AIR 1961 Raj 118) only interprets the expression 'same judgment-debtor' occurring in Section 73. It cannot be inferred from that decision that property formerly belonging to a debtor can be taken in execution after his death without impleading the person who has inherited it. The expression 'the decree is for the payment of money out of the property of the deceased' occurring in Section 52 contemplates that the person in whom the property has vested after the death of the original debtors has also teen made a party to the suit. A decree can only be passed against the assets of a deceased person in the hands of a particular person who is alive and that person must necessarily be impleaded in the suit before a decree can be passed so as to bind him.

4. The executing court however, made a mistake to working out the share of Smt. Atri in the property belonging to Ganeshmal and Amarchand. The share of Smt. Atri is only 1/4th and not one-half as held by the executing court.

5. The result is that all the decree-holders are entitled to rateable distribution in the sum of Rupees 21,158/4/- but only Sagarmal and non-petitioners Nos. 2 to 6 in execution case No. 102/61 are entitled to rateable distribution in the sum of Rs. 7,052/12/-.

6. The revision applications are accordingly decided as indicated above. In the circumstances of the case, I direct that the parties shall bear their own costs of these revision applications.


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