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2000 DIGILAW 290 (CAL)

BHAILAL SHAW v. GOBINDARAM NAGAR

2000-06-16

SAMARESH BANERJEE

body2000
G. C. DE, J. ( 1 ) -THESE two appeals are directed against the Order No. 97 dated 28. 2. 84 passed by Shri G. Banerjee, Subordinate Judge, second Court, Alipore in Misc. Case Nos. 4 and 5 of 1982 tried analogously. ( 2 ) ONE Govindaram Nagar got a decree of Rs. 53,033. 41 P. with interest in Suit No. 266 of 1977 in the Original Side of the High Court at Calcutta on 25. 7. 78 and the said decree was transferred to the second Court of Subordinate Judge at Alipore with a certificate of non-satisfaction and the said decree was put into execution in that Court and Money Execution Case No. 2 of 1980 was started against the judgment-debtor, Kishan Lal Shaw @ S. K. Lal Shaw. ( 3 ) SIMILARLY, one Shyamsundar Sen got a decree of Rs. 52,707. 05p. with interest in Suit No. 267 of 1977 in the Original Side of the High Court at Calcutta and the said decree was transferred to the second Court of Subordinate Judge at Alipore with a certificate of non-satisfaction and Money Execution Case No. 3 of 1980 was started when the said decree was put into execution against the same Kishan Lal Shaw @ S. K. Lal Shaw. In both the execution cases the writ of attachment of the property of the judgment-debtor was issued on 16. 5. 80 in terms of the Order No. 3 dated 13. 5. 80 and it was duly served on 6. 6. 80. On 30. 7. 80 in both the execution cases, the decree-holder intimated that there is a mortgage in respect of the attached property in favour of the United Bank of India for Rs. 35,000/- and hence a prayer was made for sale of the attached property subject to the mortgage for Rs. 35,000/- in favour of the United Bank of India. Notice was issued to the United Bank of India which filed a written objection on 28. 11. 80 and prayed for inclusion of the claim of the bank appropriately in the sale proclamation and by Order No. 22 dated 9. 3. 81, the execution petition was amended suitably incorporating the claim of the United Bank of India. ( 4 ) THE judgment-debtor Kishanlal Shaw died intestate on 30. 3. 81 and the decree-holder prayed for substitution of the legal heirs of the deceased on 7. 5. 81. 3. 81, the execution petition was amended suitably incorporating the claim of the United Bank of India. ( 4 ) THE judgment-debtor Kishanlal Shaw died intestate on 30. 3. 81 and the decree-holder prayed for substitution of the legal heirs of the deceased on 7. 5. 81. By order No. 27 dated 25. 5. 81 notices were issued to the legal heirs of the deceased judgment-debtor. All the notices were duly served on the legal heirs and on 3. 7. 81 Hiralal Shaw, one of the sons of the deceased judgment-debtor appeared and filed a petition informing that one daughter of the deceased judgment debtor was not substituted and that the attached property was not the personal property of Kishanlal Shaw who had only one fourth share in the said property. The decree-holder duly filed a written objection on 3. 8. 81 and by order No. 33 dated 20. 8. 81 the prayer for substitution was allowed and the heirs of the deceased judgment-debtor were brought on record of the execution petition. Again notices were issued upon the legal heirs of the deceased judgment-debtor excepting Hiralal Shaw (Judgment-debtor No. 1c) who had already entered appearance in the case. On 21. 1. 82, all the three sons of the deceased judgment-debtor filed an application under Order 21 Rule 58 of the Code of Civil Procedure praying for release of the attached property from attachment mainly on the ground that the attached property did not belong to the judgment-debtor alone, that it was a property of joint Mitakshara family and that it was partitioned amongst the judgment debtor and his three sons long before the attachment and that they came to know about the fact of attachment only on 18. 1. 82. The said application was registered as Misc. Case No. 4 of 1982 (arising out of Money Execution Case No. 4 of 1980) and a similar application was registered as Misc. Case No. 5 of 1982 (arising out of Money Execution Case No. 3 of 1980 ). The decree-holder filed written objections. ( 5 ) EVIDENCE was adduced by both the parties and after considering the evidence on record, the executing Court by Order No. 97 dated 28. 2. 84 dismissed both the Misc. Case No. 5 of 1982 (arising out of Money Execution Case No. 3 of 1980 ). The decree-holder filed written objections. ( 5 ) EVIDENCE was adduced by both the parties and after considering the evidence on record, the executing Court by Order No. 97 dated 28. 2. 84 dismissed both the Misc. Cases after coming to a conclusion that the attached property was not a joint Mitakshara family property of the deceased judgment debtor, that the alleged partition between the father and the three sons during the pendency of the money suits was not bona fide and that the property was properly attached and the sons had pious obligation to pay the debt incurred by their deceased father. Against the said finding both these appeals have been preferred. ( 6 ) IN course of hearing of this appeal the decree-holder did not appear, but the learned counsel appearing on behalf of the three sons tried to argue that the entire property cannot be attached as there was a partition of the joint Mitakshara family property between the deceased judgment-debtor and his three sons as early as in 1979. So the contention of the learned counsel is that under Order 21 Rule 58 of the Civil Procedure Code the objections raised are to be adjudicated. As regards the scope of inquiry under Order 21 Rule 58 of the Code, it is to be mentioned that the executing Court had the power not to entertain the objection, filed by the three sons, under clause (b) of proviso to rule 58 (1) of Order 21 inasmuch as one of the brothers duly appeared before the executing Court as early as on 3. 8. 81 when the factum of attachment of the property came to his knowledge. But it transpires that the executing Court without rejecting the application on this preliminary point opted to have a detailed inquiry and as such, let it be considered whether the present appellant is entitled to get any relief as prayed for. ( 7 ) FROM the materials on record, it transpires from the evidence of Madhablal Shaw (PW 3) who is the uncle of the three brothers that the property originally belonged to their father Ramlal and they were governed by the Mitakshara School of Law. ( 7 ) FROM the materials on record, it transpires from the evidence of Madhablal Shaw (PW 3) who is the uncle of the three brothers that the property originally belonged to their father Ramlal and they were governed by the Mitakshara School of Law. The death of the father Ramlal was not supplied but it is claimed by other witnesses that he died long long ago. It further transpires from the evidence of the PW 3 that Ramlal died leaving behind two sons Kishanlal (deceased judgment-debtor) and Madhablal and in 1955 Kishanlal and Madhablal partitioned their property on the basis of a partition deed and the attached property fell into the share of Kishanlal. It further transpires from the evidence of the PW 3 that at the time of the said partition in 1955, all the three sons of Kishanlal were major, and similarly the three sons and four daughters of Madhablal were also alive. But none of them joined in the said partition deed indicating that the property was not the joint Mitakshara property of Ramlal. On the other hand, the materials on record are sufficient to indicate that it was a property of Kishanlal and Ramlal and they opted to partition the said property in 1955 when the attached property fell into the share of Kishanlal. ( 8 ) IT appears to us that the money suits against Kishanlal were filed as early as in 1977 and it was decreed on 25. 7. 78. All the three sons of Kishanlal claimed that the property of their father was partitioned in 1979 on the basis of a suit for partition. From the evidence of the two brothers, Hiralal (PW 1) and Ramesh (PW 2), it appears that a partition suit was filed against Kishanlal by his sons praying for partition and the said suit was amicably settled between them giving one fourth share to each of the parties in respect of the attached property. But neither the said decree nor any document has been produced to show that actually there was any partition of the attached property. On the other hand, from the evidence of Bhailal (PW 4) the eldest son of Kishanlal, it appears that the only daughter of Kishanlal was not made a party in the partition suit filed by the sons of Kishanlal. On the other hand, from the evidence of Bhailal (PW 4) the eldest son of Kishanlal, it appears that the only daughter of Kishanlal was not made a party in the partition suit filed by the sons of Kishanlal. It is also clear from the evidence of PW 4 that actually there was no partition of the attached property between Kishanlal and his three sons. There are sufficient materials to indicate that with a view to get rid of the Money Decree dated 25. 7. 78 passed in both the money suit, the judgment-debtor and his three sons tried to create a deed of partition on the basis of a compromise decree; but no material has been produced to show that actually there was any such partition. Even if there was a partion no effect was given to it and one of the co-sharers namely the daughter of Kishanlal, was not made a party. In the absence of that partition decree the executing Court below rightly came to a conclusion that an attempt was made to frustrate the money decree with the plea of such a partition decree and it rightly negatived that plea with the conclusion that the sons had liability to pay all the dues of the father. ( 9 ) THE materials on record are sufficient to indicate that the father, Kishanlal incurred the loan for the benefit of his family and accordingly his legal heirs are in duty-bound to repay the debt incurred by their father as they had a pious obligation to this effect. Be that as it may, there is nothing on record to show that the attached property was not the absolute property of the judgment debtor, Kishanlal or that he had one fourth share in it. On the other hand, the materials on record are sufficient to indicate that the attached property was the personal property of Kishanlal and it was duly and properly attached in execution of the decree in both the execution cases. Accordingly the objections raised by the three sons of the judgment debtor are not tenable and are liable to be rejected. The executing Court below rightly discussed the points and came to a just decision for which we find no reason to interfere with the impugned order. ( 10 ) IN the result, both the appeals are dismissed. Accordingly the objections raised by the three sons of the judgment debtor are not tenable and are liable to be rejected. The executing Court below rightly discussed the points and came to a just decision for which we find no reason to interfere with the impugned order. ( 10 ) IN the result, both the appeals are dismissed. The findings of the learned Assistant District Judge in both the Misc. Cases No. 4 and 5 of 1982 are hereby confirmed. Considering the circumstances parties are to bear their own costs of this appeal. Let this judgment do govern the fate of both the appeals. Let the Lower-Court records be sent down to the Court below forthwith. I agree. Appeals dismissed