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Kameshwar Pershad Vs. Run Bahadur Singh - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1885)ILR12Cal458
AppellantKameshwar Pershad
RespondentRun Bahadur Singh
Excerpt:
civil procedure code (act xiv of 1882), section 244, clause (c) - execution of judgment-debtor. - .....kameshwar pershad brought a suit upon a mortgage bond which was executed in march 1872 by ranee asmedh koer hypothecating certain immoveable property. in the month of august 1872 an ekrarnamah was executed between ranee asmedh koer and the respondent before us, run bahadur, who was the next reversionary heir of asmedh koer, by which the succession to the estate was accelerated, and the properties inherited by asmedh koer were handed over to run bahadur who, at the same time, by the terms of the ekrarnamah, undertook to pay off the debts due by her. subsequently to the execution of this document, the suit in which the decree now sought to be executed was passed was brought, and in that suit the plaintiff kameshwar pershad obtained a decree in the court of first instance. by that decree.....
Judgment:

Mitter and Agnew, JJ.

1. We are of opinion that this appeal, and the objections taken under Section 561 of the Code of Civil Procedure, must be dismissed, each party paying his own costs.

2. The question in the appeal turns upon the construction of Section 244, Clause (c) of the Civil Procedure Code, which runs thus: 'Any other questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree.'

3. It is contended that the respondent Run Bahadur is a 'representative' within the meaning of this clause, and that the question that is raised between the decree-holder, and Run Bahadur is a question relating to the execution of the decree.

4. It is further contended that, supposing he was not a representative, he was a party to the suit and therefore comes within the purview of that clause. The facts of this case are briefly as follows: The decree-holder Kameshwar Pershad brought a suit upon a mortgage bond which was executed in March 1872 by Ranee Asmedh Koer hypothecating certain immoveable property. In the month of August 1872 an ekrarnamah was executed between Ranee Asmedh Koer and the respondent before us, Run Bahadur, who was the next reversionary heir of Asmedh Koer, by which the succession to the estate was accelerated, and the properties inherited by Asmedh Koer were handed over to Run Bahadur who, at the same time, by the terms of the ekrarnamah, undertook to pay off the debts due by her. Subsequently to the execution of this document, the suit in which the decree now sought to be executed was passed was brought, and in that suit the plaintiff Kameshwar Pershad obtained a decree in the Court of First Instance. By that decree the property hypothecated in the hands of Run Bahadur was declared liable for the satisfaction of the debt in the mortgage-bond. There was a personal decree against Asmedh Koer. Two separate appeals were preferred by the two defendants respectively, and the two appeals were disposed of by this Court by one and the same judgment and decree. This Court came to the conclusion, for reasons stated in the judgment, that the mortgage was not binding upon Asmedh Koer as well as upon Run Bahadur, but it was of opinion that under the bond Asmedh Koer was personally liable. Accordingly the decree of the lower Court was varied, and it was confirmed so far as it was a personal decree against Asmedh Koer. In all other respects it was set aside. Against that decree the plaintiff Kameshwar Pershad preferred an appeal to the Judicial Committee; but before this appeal was preferred Ranee Asmedh Koer died, and Run Bahadur was substituted in her place. The appeal before the Judicial Committee was heard ex parte, and the decree of this Court was confirmed. That decree is now sought to be executed against Run Bahadur, and the decree-holder prays for the realization of the money due by the sale and attachment of certain properties which came into the possession of Run Bahadur at the time the ekrarnamah of August 1872 was executed.

5. We are of opinion that upon these facts the decree cannot be executed by the attachment and sale of these properties which had been owned and held by the husband of Asmedh Koer. So far as these properties are concerned, he was not the legal representative of Asmedh Koer under the law of inheritance. He inherited these properties as the heir-at-law of Ranee Asmedh Koer's husband after the death of Asmedh Koer. Furthermore, the respondent's title as regards these properties under the ekrarnamah is not that of a representative within the meaning of Clause (c) of Section 244, The word 'representative' there means any person who succeeds to the right of any of the parties to the suit after the decree is passed. If such rights are transferred by a party to the suit before decree, and H the transferee is made a party to the suit before decree, then he comes within the words 'parties to the suit.' The word 'representative' as used in Clause (c) only means a person who succeeds to the right of a party to the suit after decree, and therefore the respondent is not a 'representative' within the meaning of Clause (c), Section 244. If he is considered as a representative after the death of Asmedh Koer as having succeeded to her peculiar properties, then the decree-holder must bring the case within the provisions of Section 234, which says: 'Such representative shall be liable only to the extent of the property of the deceased which has come to his hands and has not been duly disposed of.'

6. In the present case the decree-holder was able to prove that to the extent of Rs. 5,000 only the respondent Run Bahadur is liable under this section.

7. In order that the decree-holder may succeed in making a representative under this section liable, he must prove that some property of the deceased has come to the hands of the representative after the death of the party whose representative he is.

8. In this case the properties in dispute came into the hands of the respondent before the death of Asmedh Koer under the ekrarnamah of 1872.

9. So long as Asmedh Koer was alive, the respondent was holding these properties under the conditions of the ekrarnamah. After the death of Asmedh Koer, he became the owner of the properties as heir-at-law of Asmedh Koer's husband.

10. Then as regards the contention that the present case comes within Clause (c) of Section 244, because the respondent Run Bahadur was a party to the suit, it seems to us that it is not well founded, because, although Run Bahadur was a party to the suit, no decree was passed against him. He was successful. The claim against him was that the property in his hands was liable as having been previously hypothecated. That was the only claim brought against him in that suit, and so far as that claim was concerned, the plaintiff's suit was dismissed, and therefore, although he was a party to the suit, still the question that has arisen is not a question relating to the execution of the decree which was passed in the suit in favour of the plaintiff.

11. Upon these grounds we are of opinion that the lower Court is right in the view which it has taken of the meaning of Clause (c) of Section 244.

12. With reference to the ground which was urged under Section 561 against the order of the lower Court, it is sufficient to say that there is a clear admission on the part of Run Bahadur that he inherited properties to the extent of Rs. 5,000.


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