Judgement Appeal (No. 86 of 1947) from a judgment and order cf the High Court (April 20, 1942) which set aside an order passed by the Subordinate Judge, First Class, Patna (November 29, 1941) dismissing a petition of the respondents under s. 47 of the Code of Civil Procedure. The following facts are taken from the judgment of the Judicial Committee. This appeal arose in an execution proceeding of the money decree passed by the Subordinate Judge, First Court, Patna, in money suit No. 5 of 1939, dated August 22, 1940. The appellant before the Board was the decree holder (plaintiff), the Bihar Bank, Ltd. The respondents were defendants Nos. 1 and 2 in the suit. The order passed by the Subordinate Judge in the suit was as follows " Suit " decreed against defendant No. 3 in the presence of defendants " 4 to 6 . . . . The suit is dismissed as against defendants 1 " and 2 with costs . . . . " In the execution of the decree, which was for Rs. 15,718-7-0 with interest and costs, one-third share in certain joint family property called the Khadga Vilas Press held to belong to the third defendant was brought to sale. The respondents objected to the attachment and sale on the ground that the property was joint family property. The Subordinate Judge disallowed the objection, but the High Court (Agarwalla and Shearer JJ.) allowed it and set aside the Subordinate Judges order. Law. Rep. 75 Ind. App. 300 ( 1947- 1948) Bank of Bihar, Limited V. Sarangdhar Singh 190 The question for determination in this appeal was whether one-third share in the Press could be sold in execution of the decree obtained by the appellant against the third defendant. The money suit was instituted by the appellant against the respondents—the brothers, defendant No. 3—the widow, and defendants 4 to 6—the daughters, of one Rai Bahadur Ram Ran Vijoy Singh—who will hereinafter be referred to as the Rai Bahadur—for Rs. 15,718-7-0, which was said to have been borrowed by him on an overdraft account. The Rai Bahadur carried on the business of printing and was the proprietor of a press called the Khadga Vilas Press. He died in 1936. The appellant alleged that the money was lent for carrying on a joint family business of the Rai Bahadur and his brothers. The Rai Bahadur carried on the business of printing and was the proprietor of a press called the Khadga Vilas Press. He died in 1936. The appellant alleged that the money was lent for carrying on a joint family business of the Rai Bahadur and his brothers. The respondents (his brothers) admitted that they-were Joint with the Rai Bahadur, and that the business was joint family business, but they denied that the money was borrowed for the joint family business or family necessity. The widow, the third defendant, alleged that her husband the Rai Bahadur was separate from his brothers and the business was a partnership business carried on by the Rai Bahadur and his brothers in partnership, but that the money was not taken for the purpose of that business. The sixth issue in the case was " Was the "debt in question created by the Rai Bahadur for the purpose " of his business and other family necessities as alleged by the "plaintiff and was the same binding upon the defendants ?" The Subordinate Judge held that the Rai Bahadur died in a state of jointness, that the business was joint family business and that the appellant failed to prove that the loan had been taken for joint family business or for family necessity. He however decided that " the debt is binding on defendant No. 3 " to the extent of the share of the Rai Bahadur in the joint " properties in her hand" as " defendant No. 3 under s. 3, "sub-s. 2, of Act 18 of 1937 [The Hindu Womens Rights to " Property Act] as amended by Act II. of 1938 got in the joint " family property the same interest as her husband had." At the time when the execution of the decree was taken an appeal against the decree was pending. It was common ground that as the Rai Bahadur died in 1936 the Hindu Womens Property Act of 1937 as amended could not be made applicable in the case of his widow, but in view of the finding of the learned Subordinate Judge in the money suit that the Rai Bahadurs widow had one-third share in the joint properties left by her husband and the. Khadga Vilas Press was a joint family property, the Subordinate Judge held that it was not open to the respondents to object to the sale of the property in the execution proceedings. On appeal, the order of the Subordinate Judge was set aside by the High Court. After referring to the opinion of the Subordinate Judge who tried the money suit that the widow was entitled under the Act to the share which her husband had in the joint family property and was liable for his debts, the High Court observed as follows " Had the " court which made the decree gone no further than its findings " that the Rai Bahadur and the appellants were joint, that the " business was a joint family business and that the loan was " not taken for the joint family purpose there would have been " no difficulty in this case ; but the observations in the judgment which followed these findings .have given rise to the " ground on which the decree-holder and the widow resist " this appeal. Those observations were unnecessary for the "decision of the case and were not raised either between the " decree-holder and appellants, who both alleged that the " family was joint and that the business belonged to the joint " family, or between the widow and the appellants." 1948. June 15, 16. Sir Alfred Wort for the appellant. The Subordinate Judge dismissed the respondents objection to execution because he said, and rightly, it is submitted, that he could not go behind the decree in the money suit. The High Court said that the decision of the Subordinate Judge in the money suit that the widow was entitled to one-third of the joint property was unnecessary for the purposes of the case and allowed the objection. The decision that the widow was interested in the joint property to the extent of a one-third share was necessary for the decision of the case, and it is submitted that the High Court was wrong and that it could not go behind the decree—in this case the judgment, because the decree depends on the judgment. It all comes back to the old proposition that an executing court is not entitled to consider the correctness or otherwise of the decree it cannot go behind the decree nor consider the reasons therefor of the court pronouncing it. Law. It all comes back to the old proposition that an executing court is not entitled to consider the correctness or otherwise of the decree it cannot go behind the decree nor consider the reasons therefor of the court pronouncing it. Law. Rep. 75 Ind. App. 300 ( 1947- 1948) Bank of Bihar, Limited V. Sarangdhar Singh 191 In no circumstances in this case could there have been anything but a money decree. Assuming that the Act of 1937 as amended did apply, and assuming also that the Subordinate Judge had decided, as he has, that the money was borrowed, but not for family purposes, in those circum stances, having the third defendant—the widow—before him he could not possibly have dismissed the suit. He could not have dismissed it because although she was not personally liable for the debt, she was liable for it as being the widow to the extent of her property derived from her husband. In other words, the decree against her depended entirely on the matter that she was liable for the debts of her husband Mullas Principles of Hindu Law, 9th ed., p. 175, s. 181. If the court goes behind the money decree, it is going behind the judgment on which it depends, and it is not competent to do that under s. 47 of the Code. [Reference was also made to Mulla (supra), s. 294, and to Mungal Pershad Dichit v. Grija Kant Lahiri Chowdhry (( 1881) L.R. 8 I.A. 123, 131.), Sri Rajah Papamma Rao Bahadur v. Sri Vira Pratapa Korkonda (( 1896) L.R. 23 I. A. 32, 34.) and Krishna Chandra Goldar v. Mohesh Chandra Saha (( 1905) 9 Cal. W. N. 584.).] This decree could not exist in this case without this particular judgment in this particular form. Rewcastle K.C. and B. Sen for the respondents. If this appeal be allowed the result would be that joint family property would be sold in respect of a debt which it has been expressly found was not for necessity. Nobody having said anything about the Hindu Womens Rights to Property Act, and there being nothing about that Act in issue, or raised in the pleadings , or argument, at the end of his judgment in the money suit the Subordinate Judge suddenly proceeds to say that that Act applies. Nobody having said anything about the Hindu Womens Rights to Property Act, and there being nothing about that Act in issue, or raised in the pleadings , or argument, at the end of his judgment in the money suit the Subordinate Judge suddenly proceeds to say that that Act applies. The High Court rightly said that "those observations “were unnecessary for the decision of the case." They were not necessary to any issue. All the decree says is that the widow shall pay some money. No doubt the judge intended her to pay it out of the property which came to her under the statute. Supposing he had said that she shall pay this out of the one-third which she takes under the Act, that would not make any difference, because she never took under the Act, and could not because it did not apply. It cannot be said that the respondents are going behind the judgment because they say that this is not property which she takes under the Act this is their property, and it has never had anything to do with the widow. If the judgment is looked at, it must be examined only so far as it decides the issues in the action. The court executing a decree is competent to determine the question whether the property sought to be sold in execution belongs to the judgment debtor or not. Sir Alfred Wort replied. July 19. The judgment of their Lordships was delivered by SIR MADHAVAN NAIR, who stated the facts set out above and continued Their Lordships agree with the view of the High Court as above cited. The rule is well established that an execution court cannot go behind the decree and question its correctness ; but when the decree is silent, as in the present case, and gives no indication as to what property should be sold in execution, it is permissible for the court to look into the judgment to find out whether on any issue properly raised and determined as between the parties interested the property brought to sale has been held to belong to the judgment debtor. On the main issue raised in the case the property has been held to be joint family property and the suit has been dismissed as against the respondents. On the main issue raised in the case the property has been held to be joint family property and the suit has been dismissed as against the respondents. The question as regards the liability of the widow was not in issue either between the defendants inter se or between the decree-holder (plaintiff) and the defendants. The observations in the money suit—as pointed out by the High Court—were unnecessary for the decision of the case, and were not in issue between the parties ; and further, the order of the court does not mention that one-third share of the widow in the property should be sold. In this connexion it may also be noted, as pointed out by the Subordinate Judge in his order, that " it is conceded by both "the parties that the Rai Bahadur died in 1936 . . . and " Act II. of 1938 could not, therefore, be made applicable to "his widow." In the circumstances their Lordships hold that it was open to the respondents to say that the property could not be sold as it was joint family property, especially so, as Law. Rep. 75 Ind. App. 300 ( 1947- 1948) Bank of Bihar, Limited V. Sarangdhar Singh 192 the suit had been dismissed as against them. Their Lordships will humbly advise His Majesty that this appeal should be dismissed with costs.