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Khubi Lal Vs. Smt. Champa Bai - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Revision No. 91/1977
Judge
Reported in1977WLN(UC)504
AppellantKhubi Lal
RespondentSmt. Champa Bai
DispositionPetition dismissed
Excerpt:
.....not belonging exclusively to kesar bail then whatever the interest the judgment-debtor has in the suit property is liable to be attached and sold but, as the plaint now stands, if it is held that it was the exclusive property of kesar bat thin the suit of the plaintiff would stand decided accordingly.;revision dismissed - - the petitioner in spite of service of summons failed to appear and ex-parte proceedings went on against him. she has not yet amended her plaint on the death of kesar bai playing any alterative relief that in case the property is held to be belonging to kesar bai, sohanlal, the judgment debtor, has acquired any share therein and as such that interest of sohanlal in the property could now well be attached and sold. in this view of the matted this apprehension of the..........was in possession. that objection was allowed by the learned addl. civil judge, udaipur and the suit property was released from attachment by his order dated 1510 1969. the decree-holder smt. champa bai, therefore, filed a suit under order 21 rule 63 cpc against smt. kesar bai, sohanlal (judgment-debtor) and the petitioner khubi ram. no relief was however, claimed. against the petitioner in that suit. the petitioner in spite of service of summons failed to appear and ex-parte proceedings went on against him. kaspr bai contested the mst. during the tendency of the suit kesar bai died. khubi ram and sohan lal who were already on record in different capacity, were taken to be the legal representatives of smt. kesar bai in place of her. the trial of the case was more or less complete and.....
Judgment:

R.L. Gupta, J.

1. Smt Champa Bai non petitioner No. 1 obtained a decree against Sohanlal non-petitioner No. 2 on June 28, 1965. The property in dispute was attached in execution of that decree One Smt. Kesar Bai filed an objection under Order 21 Rule 58 CPG asserting that the property exclusively belonged to her and she was in possession. That objection was allowed by the learned Addl. Civil Judge, Udaipur and the suit property was released from attachment by his order dated 1510 1969. The decree-holder Smt. Champa Bai, therefore, filed a suit under Order 21 Rule 63 CPC against Smt. Kesar Bai, Sohanlal (judgment-debtor) and the petitioner Khubi Ram. No relief was however, claimed. against the petitioner in that suit. The petitioner in spite of service of summons failed to appear and ex-parte proceedings went on against him. Kaspr Bai contested the Mst. During the tendency of the suit Kesar Bai died. Khubi Ram and Sohan Lal who were already on record in different capacity, were taken to be the legal representatives of Smt. Kesar Bai in place of her. The trial of the case was more or less complete and arguments were to be heard when Smt. Kesar Bai died. Khubiram petitioner wanted to file written statement that he himself has now become the owner of the suit property on the death of Kesar Bai on the basis of the alleged registered will said to have been executed in his favour on 6-5-1972 by Kesar Bai. The trial court did not agree with the contention of the petitioner & ordered that he can defend the suit from the stage at which it was pending at the death of Kesar Bai. As the trial was complete and the arguments were to be heard no further order can be given to the petitioner to amend the written statement or produce and evidence in this regard. The learned trial court therefore rejected the application by its order dated 18-4-1977. It is against this order that the revision has been filed.

2. It may be mentioned that the non-petitioner Smt. Champa Bai decree-holder has brought the suit on the ground that the suit property does not belong to Smt. Kesarbai but is an ancestral one belonging to the petitioner and the non-petitioner No. 2 Sohanlal. She has not yet amended her plaint on the death of Kesar Bai playing any alterative relief that in case the property is held to be belonging to Kesar Bai, Sohanlal, the judgment debtor, has acquired any share therein and as such that interest of Sohanlal in the property could now well be attached and sold. In this view of the matted this apprehension of the learned Counsel for the petitioner does not seem to be well founded at this stage. If the property is held to be ancestral one and no belonging exclusively to Kesar Bai then whatever the interest the judgment-debtor has in the suit property is liable to be attached and sold but. as the plaint now stands, if it is held that it was the exclusive property of Kesar Bai then the suit of the plaintiff would stand decided accordingly. Ordinarily the legal representatives of the deceased defendant has to take up the case as pleaded by his predecessor in title.

3. Another apprehension of the learned Counsel for the petitioner is that the learned Munsif has prejudged the genuineness of the will by observing that Kesar Bai in her statement which was recorded on 25-10-1972 could have referred the will which is said to have been executed on 6-5-1972. It seems that this is a casual observation by the trial court as the genuineness of the will was not the matter of enquiry that stage.

4. In view of these circumstances the revision petition has no force and is dismissed. No order as to costs.


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