B. Upadhya, J. - (1.) THESE revisions arise out of proceedings started on objections being Sled Under Order 21 Rule 58, Code of Civil Procedure.
(2.) ONE Ram Narain Sahu had five sons, one of whom died issueless and the other four were Bhairo Dayal, Kanhaiya Lal, Ganesh Prasad and Ram Rup. Bhairo Dayal's son, Sri Lakshmi Sevak Sahu was the judgment debtor against whom the decree was sought to be executed and the objectors are the sons of Sri Lakshmi Sevak Sahu. The decree holder is Kanhaiya Lal's son Rang Nath who had brought a suit for accounts against; Lakshmi Sevak Sahu as manager of the family estate. Lakshmi Sevak Sahu had not rendered proper accounts to Rang; Nath and Rang Nath claimed that he was entitled to his share of the income of the family properties. A preliminary decree was passed in the suit filed by Rang Nath on 15 -8 -1944. This was followed by a final decree, which is now in execution, on 13 -12 -1949, for Rs. 4451 odd. This suit had been filed by Rang Nath in the year 1930, Two years earlier another suit No. 48 of 1928 had been filed by Ram Rup the youngest son of Ram Narain Sahu against Lakshmi Sevak Sahu with similar allegations. In that case a preliminary decree was passed but there were appeals and the matter was fought U.P. to the Privy Council. When the decree ultimately passed was executed there was a compromise between Lakshmi Sevak Sahu and Balmukand son of Ram Rup, who had since died. Though the matter is now not before the court these two cases do indicate that members of the erstwhile Hindu family, whose affairs were being managed by Sri Lakshmi Sevak Sahu, were evidently dissatisfied with the management and this dissatisfaction took the concrete shape of litigation as far back as 1928 and 1930. The course of litigation appears to be much prolonged and the sons of Lakshmi Sevak Sahu appear to have felt the necessity of safeguarding their own interests by separating their shares in the ancestral property. It is alleged that in 1938 there was a partition between Lakshmi Sevak Sahu and his sons and possession was separately taken by the parties, but there was no document in writing to evidence that partition. On 29 3 -1944 a regular partition deed was drawn up, executed and got registered and the two properties which were attached by the decree holder on 20 -5 -1950 are said to be the properties which came by allotment to the share of the sons of Lakshmi Sevak Sahu. It appears that the court closed soon after the attachment for the summer vacations and when reopened early in July objections were filed by the sons of Lakshmi Sevak Sahu Under Order 21 Rule 58 Code of Civil Procedure. The learned Civil Judge disposed of the objections along with another objection in another execution case which was heard along with this case by another order dated 5 -4 -1952, He dismissed the objections. The order passed by the learned Civil Judge is rather a very long order in which he has attempted to deal in detail with matters which he thought called for a decision in the case. The learned Judge after setting out the pedigree referred to the prolonged litigation from 1928 and then set out some of the facts relating to the partition between Lakshmi Sevak Sahu and his sons and proceeded to formulate the points which according to him arose for decision, almost issues, in a regular suit. The learned Judge posed four questions: (1) Whether a separation and partition had taken place between Lakshmi Sevak Sahu and his sons in 1938 and 1940? (2) Whether the partition set U.P. was a sham and collusive transaction? (3) Whether the decree in question amounted to Avyavaharik debt? (4) Whether any arrangements had been made by Lakshmi Sevak Sahu and his sons for payment of the debts of the creditor and if not its effect?
(3.) ONE cannot help noticing that in posing these questions the learned Judge evidently forgot the exact scope of an enquiry Under Order 21, Rule 58 and felt as if he was dealing with a regular suit, yet the enquiry was and must be considered by the parties to be of a summary character, with the result that a solitary person was examined as a witness on behalf of the objectors and only the son of the decree holder appeared on the other side. Detailed evidence relating to the nature of the transaction, the partition itself and the earlier oral partition in 1938 was not produced. Nor does it appear to have been found necessary by the parties to enter into the question of the change of possession which took place at the above partition, the fact as to who paid the revenue for the Zamindari properties mentioned in the partition deed after the partition or any change in the revenue papers or as to who repaired the house and got the usufruct thereof. All these were matters which in a regular suit might have been the subjects of considerable dispute. On these points it is very likely that the parties would have produced such oral and documentary evidence as they found necessary. But, with the scanty evidence before him, the learned Judge thought it proper to draw inferences and conclusions about the nature of the transactions and liabilities of the objectors the invalidity of the partition and other complicated matters both of fact and law. He found that the partition was only a sham and collusive transaction entered into with an intention to defeat and delay the decrees in question and not made with an intention to separate or partition the joint family properties. He further observed that the decree in question was not an Avyavaharik debt and the sons were, therefore, liable to pay the amount. Relating to the arrangement, which he thought should have been made for the payment of those decrees, the learned Judge observed that no arrangement was made. On these findings he based his decision.;