BRIJ BEHARI LAL Vs. PHUNNI LAL

JUDGEMENT

(1.) This is an appeal by Brij Behari Lal, decree-holder. He obtained a decree for Rs. 4269-13-0 on 7 November 1933 against Ganesh Prasad from the Court of the Civil Judge of Basti, and the execution application which has given rise to the present appeal was filed by Brij Behari Lal on 23 October 1934 in the Court of the First Additional Civil Judge of Gorakhpur. The application sought the attachment and sale of certain house properties at Gorakhpur. It appears that before the present application for execution at Gorakhpur, certain proceedings were taken at Basti in the Court which passed the decree, and it is necessary to state those proceedings. As we mentioned before, the decree was obtained against Ganesh Prasad, but execution was sought against his sons. The first application was made on 19 May 1934 in the Basti Court against Ganesh Prasad under the mistaken belief that Ganesh Prasad was alive. The prayer was for the transfer of the decree to the Gorakhpur Court. Ganesh Prasad had died on 1 May 1934, and when the decree-holder came to know of it, he applied on 10 August 1934 for the return of the file to the Basti Court, and the record was returned to Basti on 13 August 1934. On 4 September 1934 the decrees-holder applied for the substitution of the names of Phunni Lal and Dharam Nath, the sons, in place of Ganesh Prasad, the deceased judgment-debtor. Notice of this application went to Phunni Lal and Dharma Nath and they were asked to show cause by 24th September 1934. On 24 September 1934 they made an application at Basti praying for time on the allegation that they had been served with the application on 18 September 1934 and as there had been some deaths in the family, they could not file objections to the application for substitution by 24 September 1934, and therefore they prayed for the adjournment of the date. On the same date, presumably after the application by Phunni Lal and Dharam Nath, the decree-holder applied for an order of transfer from Basti to Gorakhpur.

(2.) The learned Civil Judge at Basti thought that there was no necessity to adjourn the hearing of the matter, and ha on 25 September 1934 gave a certificate for the transfer of the decree to Gorakhpur. Phunni Lal and Dharam Nath on 3 October 1934 filed an objection at Basti challenging the right of the decree-holder to execute the decree against them and alleged that the debt, which was the foundation of the decree, was an improper and illegal debt, inasmuch as it had accrued because of criminal breach of trust committed by the father. It is important to note at this stage that by this time there was no application by the decree, holder for execution of the decree against any property, but the only prayer of the decree-holder was that the names of the sons should be brought on the record in place of the deceased judgment-debtor. In spite of this the Basti Court seems to have fixed a date for the hearing of the objections, and indeed it was the duty of the Basti Court to complete the array of parties and to decide the application for substitution of names. The 27 October 1934 was fixed for the disposal of the substitution matter and Phunni Lal and Dharam Nath failed to appear, and therefore their objections were dismissed on that date. Soon after on the very day an application for restoration was filed on behalf of the sons.

(3.) In the meantime the decree having been received at Gorakhpur after transfer under Section 39, Civil P.C., an application for execution was filed by the decree- holder at Gorakhpur praying that certain house properties at Gorakhpur be attached. In response to a notice sent on this application objections were filed by the sons of Ganesh Prasad on 5 November 1934, and in these objections it was asserted that the decree could not be executed against the ancestral property inasmuch as the father was guilty of criminal breach of trust and the decree that was obtained against him was in respect to a debt which arose because of the criminal breach of trust. Along with these objections an application was filed in the Gorakhpur Court by the judgment-debtor praying that their objections need not be considered and the matter should be stayed because similar objections were pending at Basti. The Gorakhpur Court stayed proceedings on 10 November 1934. The Court at Basti set aside the order of dismissal for default and restored the objections of the judgment-debtors on 1 December 1934, provided they paid Rs. 10 as damages to the decree-holder. The hearing was adjourned to 19th January 1935. On that date costs were not paid by the judgment, debtors, but they applied that their objections should be dismissed without adjudication. On that date it appears that they were advised to take up the position that adjudication of the objections should be obtained from Gorakhpur. On the application the learned Judge passed the order, "Premature, hence filed." A formal order was then prepared, wherein it was stated that as the judgment-debtors had not paid the damages which they had to pay under the order of 1 December 1934 but had applied for the dismissal of their objections, therefore the objections of the judgment-debtors should be deemed to be dismissed with costs.