HARI RAM Vs. BISNATH SINGH
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Burkitt and Henderson, JJ -
(1.) In this case the plaintiff-respondent; before us, sought to have it declared that he was entitled to a one-fourth share of the ancestral property of the family, and further to have it declared that his one-fourth share in certain property which had been attached and advertised for sale was not liable to be sold.
(2.) It appears that in 1885 a decree was obtained by the defendant-respondent upon a bond by which two houses of the joint family had been hypothecated. This bond was executed by the plaintiff's father and uncle and other younger members of the family, not including the plaintiff, who was very young at the time, to secure a debt which had been incurred many years before by the plaintiff's deceased grandfather, and a small sum advanced at the time of the execution of the bond. In a suit upon the bond to which the plaintiff was not made a party, a decree was given for Rs. 1,363, for principal and interest and costs, and it directed that this amount should be realized in the first instance by the sale of the two houses hypothecated, and that, in the event of the proceeds of sale not being sufficient to satisfy the amount of the decree, the balance should be realized from the defendants personally.
(3.) The two houses were sold, and, after the application of the sale proceeds towards payment of the decree, there remained a considerable balance. To recover that balance certain property of the joint family has been attached. The plaintiff objected to the attachment, but his objection having been disallowed, he filed the present suit, claiming that his one-fourth share in the property attached was not liable to be sold. The Lower Appellate Court has found that the original debt was contracted for the benefit of the family, and not for immoral purposes, and that according to Hindu law the plaintiff was under a pious obligation to pay the same. Having so found, the learned District Judge after referring to the case of Beni Madho V/s. Basdeo Patak (1890) I.L.R. 12 All. 99, in his judgment, goes on to say: "If, therefore, I had to decide this matter upon principles of Hindu common law, I should dismiss this appeal without hesitation. In perusing the terms of the decree under Section 90 (of the Transfer of Property Act), however, I notice that the relief granted in the event of non-realization by sale of the hypothecated property is specifically worded as personal against the then existing defendants. It is perfectly true that by reference to the plaint and the language of Section 90 there does not appear to be sufficient reason for the limitation of the decree to a purely personal relief against the defendants;" and again he says: "This case is limited to the enforcement of a specific decree against the defendants, and I am compelled to hold that under its explicit wording it cannot be enforced against them." In our opinion the District Judge in his interpretation of the effect of a personal decree is wrong. The decree, so far as it provides for the recovery of the balance after the sale of the property hypothecated, is a personal decree as distinguished from a decree which directs that the amount decreed is to be realized by the sale of specific property. Under such a decree any property of the judgment-debtors may be attached and sold.;
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