SYED SHAH SAFIUL ALAM Vs. SYED SHAH MOHAMMAD AMINUL ALAM

JUDGEMENT

(1.) This case illustrates the dictum of the Privy Council that the difficulties of a decree-holder in India really start after he has obtained a decree.

(2.) This is a Miscellaneous Second Appeal by the judgment-debtor arising out of a proceeding under Section 47 of the Code of Civil Procedure hereinafter to be referred to as the Code. The respondent obtained a decree against the appellant in money suit No. 33 of 1943 on the llth October 1947. The appellant was the Mutawalli of waqf under which the respondents were entitled to maintenance from the properties of the waqf as some of the beneficiaries. The respondents prayed in the suit that a decree be passed for Rs. 8203/10/- against the appellant, who was the defendant in the suit, with costs and future loss and damage and if necessary a receiver may be appointed for the realisation of the amounts to which the respondents may be found entitled from the property entered in schedule 1 of the plaint. As many as 30 items of Zamindary properties were mentioned in Schedule 1. The decree which was passed by the trial Court was in the following terms:--

(3.) Thereafter respondent no. 1 filed execution case no. 12 of 1963 in execution court under Order 21, Rule 15 of the Code for the benefit of respondent no. 2 also. Since all the Zamindari Properties, which had been mentioned in Schedule 1 of the plaint were vested in the State of Bihar on or before the 1st January, 1956 under the Bihar Land Reforms Act, 1950, in the present execution a prayer was made for the attachment of the amount of ad interim compensation payable to the Appellant under the said Act. The appellant filed Miscellaneous case no. 45 of 1963 under Section 47 of the Code. Only two points of objection were taken into the execution court -- (i) that the compensation money in question was not a debt and so it was not attachable in execution of the money decree and (ii) that the decree which had been passed in favour of the respondents was not a joint decree within the meaning of Order 21, Rule 15 of the Code and hence respondent no. 1 had no right to execute the decree for realisation of the decretal dues payable to respondent no. 2. Both these points were decided against the appellant by the learned Additional Subordinate Judge in whose court the execution case was pending. The first point was decided on the authority of a Bench decision of this court to which I was a party in Miscellaneous Appeal No. 56 of 1959 which after the execution is reported in 1964 BLJR 234, Ramsaran Das Kashyap v. Kabiraj Basudavanand. The second point was repelled on the ground that the decree in favour of the respondents was a joint decree. The judgment-debtor went up in appeal, in regard -to the first point a different stand was taken. There it was contended that the decree was for arrears of maintenance which was to be realised out of the income of certain properties mentioned in schedule 1 of the plaint and since those properties had been lost to the judgment debtor as the same had vested in the State, it could not be realised from compensation money payable to him as that money was not the income of the property. Therefore it could not be attached. The learned Additional District Judge has held that the decree was realisable from property itself and when that property has ceased to exist it could be realised from the compensation that is payable on account of the same, no matter whether the compensation is treated as profit arising out of that property or not. The lower Appellate Court has agreed with the execution court with regard to second question. The judgment debtor has preferred this miscellaneous appeal.