JUDGMENT Shivdayal, J. 1. A decree was passed for the recovery of money in favour of Bardichand father of the respondent, against Saligram, father of the appellants, in Civil Suit No. 203 of Samvat 1991 by the District Sub-Judge, Shajapur on 30th September 1935. Badrilal and Saligram are both dead and the present dispute is between their sons. In execution of that decree, on 5th December 1951, Ramnarain respondent (son of the decree-holder) filed a list of assets of the deceased judgment-debtor for being attached and sold. That list included a house. On 14th December 1951, the appellants, Ramgopal and Bhagirath objected to attachment of the house alleging that it did not belong to Saligram but was their self-acquired property. There upon the Court fixed 5th January 1952 calling upon the judgment-debtors to produce their evidence that the house was their self-acquired property. They produced three witnesses and also filed a copy of the judgment in Miscellaneous Case No. 47 of 1995 passed on 17th August 1939 by the District Sub-Judge, Shajapur. Then the decree-holder produced three witnesses in rebuttal. The learned judge held that the appellants failed to prove that the property was theirs and disallowed their objection. On appeal, the learned Additional District Judge, Shajapur, also came to the same conclusion and dismissed the appeal, 2. In this second Appeal Shri R.R. Tiwari, Learned Counsel for the appellant contends that the burden of proof was wrongly placed upon them. It is urged that the burden should have been placed on the decree-holder to prove that the property sought to be attached belonged to the deceased judgment-debtor Saligram and it was only in the event that he could get the house attached and sold. And since both the Courts below have viewed this matter with an erroneous approach, the judgment should be set aside. 3. After hearing Shri Motilal Gupta, Learned Counsel for the decree-holder-respondent. I have come to the conclusion that the contention must be accepted. Where a property is attached at the instance of the decree-holder and the legal representative of the deceased judgment-debtor objects to the attachment on the ground that the property is his, it is for the decree-holder to establish at least prima facie that the property belonged to the deceased judgment-debtor. Where a property is attached at the instance of the decree-holder and the legal representative of the deceased judgment-debtor objects to the attachment on the ground that the property is his, it is for the decree-holder to establish at least prima facie that the property belonged to the deceased judgment-debtor. In a case where the judgment-debtor is dead, the decree-holder can proceed against only such assets as may be found to be in the hands of the legal representative of the deceased judgment-debtor. It is the duty of the decree-holder to prove at least prima facie, that any particular property that he seeks to be attached and sold belonged to the deceased judgment-debtor. 4. I would refer to the decision of the Supreme Court in Mohammad Shah vs. Fosihuddin Ansari A.I.R. 1956 S.C. 713). That was a case where the plaintiff admitted that the defendant was in possession of suit properties but they asserted that he was there as Mutawalli and that his possession was on behalf of the Sunni Mohammadan community and claimed a declaration of title. Their Lordships held: Now it is evident at the outset that the burden lies on the plaintiffs. The defendant is admittedly in possession except for the fact that the plaintiffs claim that he is in possession on their behalf (a fact which the defendant denies) the plaintiffs are out of possessor. Hence they must prove that the defendant is in possession on their behalf. The only way in which the plaintiffs can do that is by showing that the properties in suit are Wakf property. The principle laid down by their Lordships is applicable here. It is the duty of decree-holder to prove in the first instance that the property belonged to Saligram. Merely because the appellants are sons of Saligram it cannot be presumed that the house originally belonged to Saligram. Thus in my opinion the executing Court, which tried the objection of the appellants was clearly in error, in wrongly placing the onus on them. I am satisfied that both the Courts below have not decided the case with a correct approach and both the judgments should therefore, be set aside. 5. Shri Tiwari then contends that the decree-holder having failed to prove that the house actually belonged to Saligram, the objection of the appellants should at once be allowed. I am satisfied that both the Courts below have not decided the case with a correct approach and both the judgments should therefore, be set aside. 5. Shri Tiwari then contends that the decree-holder having failed to prove that the house actually belonged to Saligram, the objection of the appellants should at once be allowed. In my opinion it will not be fair to the decree-holder if I look at the evidence and decide the objection on merits here. Shri Motilal Gupta, is very right when he says that on seeing that the appellants themselves did not produce sufficient evidence, the decree-holder took the matter lightly. I find that neither the appellants nor the respondent were examined in this case. It is not unlikely that the decree-holder abstained from going into the witness-box because the appellants did not choose to do so. In my opinion the parties should be given a fair opportunity to produce their evidence. 6. Then again from the judgment of the previous case (to which I have referred above) it appears that Bardichand (decree-holder), Saligram (judgment-debtor), and the appellants Ramgopal and Bhagirath (objectors) were all parties to that proceeding, If the property was identical, that Judgment may go a great way in the decision of the present objection petition of the appellants. 7. I, therefore, allow this appeal and set aside the judgments of both the Courts below. The case will go back to the Civil Judge, 2nd class Shajapur, for giving further opportunity to both the parties to produce their evidence in the light of the above observations. Costs in this Court and hitherto fore all abide the result. Appeal allowed.