Decided on June 01,1900

SAIRA BIBI Respondents


Banerji, J - (1.) We are unable to agree with the learned Judge in holding that the decree- holder appellant was not entitled to take out execution of her decree against the respondent Saira Bibi. The appellant obtained a simple decree for money against one Ezid Bakhsh. Before the decree could be executed, Ezid Bakhsh died, and after his death execution was sought against Ibrahim, the son of Ezid Bakhsh, on the allegation that Ibrahim had appropriated and not duly disposed of assets left by Ezid Bakhsh to the extent of Rs. 1,716. If Ibrahim did in fact appropriate the amount of assets alleged to have been received and not duly disposed of by him, he became personally liable to the decree-holder to the extent of those assets, under Section 234 of the Civil P. C.. Ibrahim, therefore, in substance, took the place of the original judgment-debtor to the extent of those assets, and to that extent became, to all intents and purposes, the judgment-debtor to the decree. On his death his legal representative became liable to the extent of the assets appropriated by her, and the decree-holder was entitled to apply for execution against her. In this case it has been found that Ibrahim received Rs. 1,716 payable to Ezid Bakhsh, the original judgment-debtor. To the extent of that amount he became personally liable, and the decree-holder is entitled to execute his decree against the respondent, the legal representative of Ibrahim, for the realization of that amount. In this view the Lower Appellate Court erred in dismissing the application for execution. I do not deem it necessary to decide in this case the general question whether, in every instance when the legal representative of a deceased judgment-debtor dies before execution of the decree has been completely obtained, an application for execution may be made against the legal representative of such representative. Having regard to the facts of this particular case, I am of opinion that the application of the decree-holder as against the respondent ought to have been entertained, and that the Court below erred in dismissing it. I would allow the appeal with costs, set aside the order of the Lower Appellate Court with costs, and restore that of the Court of First Instance. Aikman, J.
(2.) I agree. In my opinion the learned Subordinate Judge was right, and the learned District Judge took a wrong view of the provisions of Section 234 of the Civil P. C.. If the learned Judge's view were the sound one, much injustice might result. Supposing a judgment-debtor dies leaving property amply sufficient to pay his debts, and this property passes to an only son, who is brought on the record as the legal representative of the judgment-debtor. Then, according to the District Judge, if that son died before execution can be completed, his legal representative could not be pro-ceded against, although the original debtor's property might be in his hands. I do not think that could have been the intention of the law. We have been unable to find any case similar to the present one. It appears to me, however, that when the son of the original judgment-debtor was brought on the record as his legal representative, and when it was found that that son had in his hand money of the deceased which had not been duly disposed of, the son, to all intents and purposes, became the judgment-debtor. Therefore, in my opinion, the legal representative of the son can under Section 234 be proceeded against subject to the limitations therein set forth. I concur in the order proposed.
(3.) The order of the Court is that this appeal is allowed with costs, the order of the Lower Appellate Court set aside with costs, and that of the Court of First Instance restored.;

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