Ajo Koer And Another Judgment-Debtors, v. Gorak Nath Decree-Holder, .

Mookerjee, J.:— This is an appeal my the judgment-debtors against an order of the District Judge, by which he has dismissed an appeal against an order of the Subordinate Judge in the matter of execution of a decree for money. The decree had been obtained by the Respondents against one Kripal Narayan Tewari. Before the decree could be executed in full, the judgment-debtor died. The decree-holder thereupon took out execution against his widow Ajo Koer as his legal representative. The widow took objection to the attachment of four of the properties against which the decree-holder sought execution as assets of the original judgment-debtor in her hands; she contended that the properties in question were her own properties and did not form part of the estate of her husband. The Subordinate Judge investigated the matter and overruled the objection on the ground that the disputed properties belonged not to the lady but to her husband. The widow then appealed to the District Judge. A preliminary objection was taken that the appeal was incompetent, because the order was not under sec. 47 of the Code but under r. 61 of Or. XXI. The District Judge gave effect to this contention and dismissed the appeal without, determination of the merits of the question in controversy between the parties. On the present appeal, the order of the District Judge has been assailed as based upon an erroneous view of the scope of sec. 47. It is plain that the order under appeal cannot be supported.

In the case of Panchanan v. Rabia Bibi, it was unanimously held by a Full Bench of this Court, that an objection taken by a person who has become the representative of the judgment-debtor, in the course of the execution of a decree, to the effect that the property attached in satisfaction thereof is his own property and not held by him as such representative, is a matter cognizable only under sec. 244 of the Code of Civil Procedure, 1882. This decision is binding upon this Court, and is no way affected by the decision of the subsequent Full Bench in Kartick Chandra Ghose v. Ashutosh Dhara. That case affirms the proposition that when X in execution of a decree for money against Y personally, attaches properties of which Y alleges that he is in possession, not in his own right but as shebait of a deity to whom the property has been dedicated and who is not a party to the suit, the question raised falls, not within sec. 244 but within sec. 278 read with sec. 280 of the Code of 1882. This principle does not contravene the rule laid down in Panchanan v. Rabia Bibi, and has no application to the case before us. When, as here, X, in execution of a decree for money against Y proceeds against Z as the legal representative of Y in respect of property in the possession of Z, and Z contends that the property belongs to him and never formed part of the estate of Y, the question arises whether such property is assets in the hands of Z and is liable to be seized in execution of the decree against Y. Such question is plainly a question relating to execution of the decree obtained by X against Y and arises between the Plaintiff decree-holder X on the one hand and the representative, Z, of the Defendant judgment-debtor Y on the other hand. The question consequently must, under sec. 47, be determined by the Court executing the decree and not by a separate suit. The position is entirely different when X in execution of a decree for money against Y personally, attaches property in the possession of Y which Y alleges he holds not in his own right but as shebait of a deity who is not a party to the suit. The question raised is no doubt a question relating to the execution of the decree obtained by X against Y, but does it arise between the parties to the suit? Clearly not. The decree has been made in a suit between X on the one hand and Y in his personal capacity on the other hand. The question in execution arises between X on the one hand and Y in his capacity as trustee of an endowment, on the other hand. Y has a two-fold capacity; in one character, he is a party to the suit; in the other, he is a stranger to the suit. The position is precisely what it would have been, if Z had been the shebait and had claimed the property as such when attached by X in execution of his decree against Y. It is further plain from an examination of the terms of Or. 21, r. 60, that while it applies to the class of cases of which Kartick Chandra Ghose v. Ashutosh Dhara may be taken as the type, it cannot by any stretch of language be made to cover the class of case of which Panchanan v. Rabia Bibi is the leading example. In the former class of cases, the judgment-debtor objects that he is in possession as ??? and not on his own account within the meaning of Or. 21, r. 60; in the latter ??? of cases, the representative of the judgment-debtor objects that the property in his hands is not assets available to the decree-holder. The objections in the two clashes of cases are obviously of fundamentally different kinds. Reference may in this connection be made to the elaborate judgment of Wilson, J., in Rajrup Singh v. Ramgopal Roy(3), which was approved by the Full Bench in Panchanan v. Rabia Bibi. The view taken by the Full Bench has now been adopted by all the Indian High Courts: Seth Chand Mal v. Durga Dei(4), Kali Charan v. Jewat Dubi(5), Mureegeya v. Hayat Saheb(6), Gokulsing v. Kisansingh(7), Vengapayyan v. Karim Panakal(8). In this view, the objection raised by the widow of the original judgment-debtor, who has been brought on the record as his legal representative and who contends that four of the properties sought to be made liable in execution of the decree against her husband do not constitute assets available to the decree-holder, must be determined under sec. 47 of the Code.

The result is that this appeal is allowed, the order of the District Judge set aside and the case remanded to him in order that the appeal may be heard on the merits. The Appellants are entitled to their costs both here and in the Court of appeal below. We assess the hearing fee in this Court at five gold mohurs.

Beachcroft, J.— I agree to the proposed order on the ground that the matter is concluded by the decision of the Full Bench in the case of Panchanan v. Rabh Bibi.

Appeal allowed.