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2000 DIGILAW 1278 (PNJ)

Balraj Malhotra v. Raj Kumar

2000-10-30

R.L.ANAND

body2000
JUDGMENT R.L. Anand, J. - This civil revision has been directed against the order dated 22.5.1999 passed by Additional Civil Judge (Senior Division), Jagraon, who ordered for the auction of house bearing MCJ No. 3844 as per the schedule mentioned in the order itself. 2. Some facts can be noticed in the following manner :- Raj Kumar, respondent No. 1, filed a suit for rendition of account against Jagdish Rai and others. During the pendency of the suit the plaintiff also filed an application under Order 38 Rule 5 CPC for the attachment of property of judgment debtors. In those proceedings, Mehnga Ram, who was none else but the father of Jagdish Rai, stood surety. Decree was passed which was upheld upto the High Court and the order of the High Court is dated 20.1.1995. The plaintiff filed an application for final decree on 8.12.1998 and a sum of Rs. 41,455.66 was found payable to the decree-holder along with interest @ 12% per annum w.e.f. 1.12.1971. The final decree was passed against Jagdish Rai. It was not satisfied, as a result Raj Kumar filed an execution on 10.2.1999 against Jagdish Rai and others. Mehnga Ram, who stood surety for his son Jagdish Rai, died on 14.8.1998. The house in question originally belonged to Mehnga Ram and after his death it was inherited by present petitioner Balraj Malhotra, Jagdish Rai and two others in equal shares. Raj Kumar decree-holder wanted to get money by the sale of the property i.e. the house of Mehnga Ram. Objections were filed on behalf of Balraj Malhotra, which were dismissed vide impugned order dated 22.5.1999 for the reasons as given in paragraph 2 of the impugned order :- "2. Heard. The DH has placed on record certified copy of the surety name furnished by Mehnga Ram in the main suit. Earlier a preliminary decree passed and later on final decree was passed by this Court and during the pendency of execution proceedings FDR for Rs. 40,000/- alongwith house bearing No. MCJ 3844 was attached and after attachment a notice under Order 21 Rule 66 was served upon the JD which was received back with the report of refusal. From the documents placed on file it stands established that Mehnga Ram stood surety and furnished FDR which is lying in the Bank. 40,000/- alongwith house bearing No. MCJ 3844 was attached and after attachment a notice under Order 21 Rule 66 was served upon the JD which was received back with the report of refusal. From the documents placed on file it stands established that Mehnga Ram stood surety and furnished FDR which is lying in the Bank. Since JD has not come present and FDR in the shape of surety stands already attached which has been furnished by Mehnga Ram for making payment to the DH as held in the main suit. Hence FDR in the name of Mehnga Ram which is lying with Oriental Bank of Commerce Jagraon for Rs. 40,000/- is ordered to be released in favour of Raj Kumar, DH. The counsel for the DH has further contended that with this amount their decree is not going to be satisfied. A persual of file shows that house of the JD bearing MCJ No. 3844 also stands attached. Let notice under Order 21 Rule 66 C.P.C. be issued for the auction of that house as per detail as under :- 1. Court Notice for 31.5 2. Monadi for 15.5 3. Sale 19.7 4. Report 30.7.99" 3. I have heard the counsel for the parties and with their assistance have gone through the record of this case. 4. Facts in this case are not much in dispute. The dispute is how to drag the litigation which is being done by the petitioner. Admittedly, Mehnga Ram stood surety for Jagdish Rai. The house belonged to Mehnga Ram and after his death this property was inherited by the petitioner to the extent of 1/4th share. 14/th share of the property was inherited by Jagdish Rai, respondent No. 2. Therefore, the petitioner and respondent No. 2 Jagdish Rai along with other co-owners are liable to pay the decretal amount to respondent No. 1 Raj Kumar. 5. The learned counsel appearing on behalf of the petitioner submitted that the decree in this case was only against Jagdish Rai, therefore, the estate of Mehnga Ram cannot be held responsible for the payment of decretal amount. This submission of the counsel for the petitioner is totally devoid of any merit. Mehnga Ram stood surety and, therefore, his estate is liable to reimburse/satisfy the decree. 6. This submission of the counsel for the petitioner is totally devoid of any merit. Mehnga Ram stood surety and, therefore, his estate is liable to reimburse/satisfy the decree. 6. It was then submitted by the counsel for the petitioner that Jagdish Rai inherited 1/4th share in the property and his share is sufficient to satisfy the decree. Therefore, the decree should be executed at the first instance against Jagdish Rai to the extent of his 1/4th share. This submission of the counsel for the petitioner is again not acceptable to this Court, because it is for the petitioner, Jagdish Rai and other co-owners to decide how to pay the money. The decree-holder is entitled to get the decree executed from the LRs of Mehnga Ram. Since the house has been inherited by petitioner Balraj Malhotra, respondent No. 2 Jagdish Rai and two others, therefore, the decree- holder has the right to attach the estate of Mehnga Ram and get it sold through Court. 7. In this view of the matter, I do not see any merit in this revision and the same is hereby dismissed with costs of Rs. 5,000/-. Revision dismissed.