Surinder Singh, J. - (1.) SHRIMATI Jagir Kaur filed a suit against Om Parkash (Appellant) and Sher Singh for a declaration that the house, description whereof is mentioned in the plaint, was immune from attachment and sale in execution of a decree obtained by the Appellant against Sher Singh (Defendant No. 2). The suit was resisted by the Appellant and after contest in the trial Court the same was dismissed An appeal was preferred by Shrimati Jagir Kaur, which too ended in dismissal. However, in the decree passed by the lower appellate Court, an observation was incorporated to the effect that Sher Singh had 1/3rd share in the attached house and as such, his 1/3rd share was liable to attachment and sale in execution of the decree against him. The Appellant Om Parkash has filed the present Regular Second Appeal against the judgment and decree of the lower appellate Court, i.e. Senior Subordinate Judge, Patiala, dated March 25, 1965, with a grievance that the aforesaid observation as incorporated in the decree -sheet was not called for and the decree -sheet should be modified accordingly.
(2.) OUT of the two Respondents arrayed in this appeal, i. e., Shrimati Jagir Kaur and Sher Singh, the former died during the pendency of this appeal and her co -Respondent Sher Singh was impleaded as her legal representative, apart from his own right to contest the appeal. After some time, Sher Singh also died before the appeal could be listed for hearing and one Gurbux Singh son of Ram Singh was impleaded as his legal representative. Notice of this appeal was earlier issued to the said Gurbux Singh, who was duly served. However, at the time of hearing of this appeal, neither Gurbux Singh nor any counsel on his behalf has chosen to appear though an actual date notice was sent to him under Registered A. D. cover. The appeal has, therefore, been heard ex -parte. The short and the only point urged by the Appellant in this appeal is that the lower appellate Court committed a patent illegality in incorporating an observation in the decree -sheet, even though the appeal was dismissed with costs and was thus decided in favour of the Appellant. The submission is not without substance. The trial Court had dismissed the suit of the Plaintiff Respondent and this dismissal was upheld by the lower appellate Court while dismissing the appeal. Normally no appeal is competent against a mere observation in the judgment, but when such an observation has been pointedly infused into the decree sheet, this would adversely affect the rights of successful party in regard to the matters contained therein. The present appeal is not, therefore, directed against a mere observation but against the decree itself. The only question which was the subject -matte? of dispute between the parties ss envisaged in the issues framed in the case was as to whether the property in dispute belonged to the Plaintiff and was consequently not liable to attachment and sale. Both the Courts below held that Shrimati Jagir Kaur Plaintiff had no right or title to the property and bad thus no locus standi to file the suit. There was no specific Issue on the point as to whether any particular share in the property was liable to attachment and sale or not In the absence of any such issue, no finding in regard to the same could have been arrived at and the observation of the lower appellate Court in this behalf was not called for. The decree -sheet was, therefore, wrongly drawn and this error calls for rectification(sic).
(3.) CONSEQUENTLY , the appeal succeeds to the extent that the decree -sheet of the lower appellate Court shall be modified so as to exclude the portion which recites the observation made in regard to the 1/3rd share of Sher Singh in the attached house However, in the circumstances, of the case, there will be no order as to costs of this appeal.;