1. Home
  2. /
  3. High Court Of Judicature at Allahabad
  4. /
  5. 1934
  6. /
  7. January

Shankar Lal And Ors. vs Shyam Sunder Lal

High Court Of Judicature at Allahabad|23 March, 1934


JUDGMENT Sulaiman, C.J.
1. This is an appeal by certain persons who claimed to be the relations on the father's side of the deceased judgment-debtor, Mt. Ram Devi. The decree-holder, in execution of his decree against Mt. Ram Devi who was alleged to be in possession of her estate as a Hindu daughter had sought to execute the decree by sale of her assets and had impleaded these applicants as well as the husband of the deceased, namely, Shyam Sundar. The decree-holder was not concerned with the question who was the real heir to the estate of the deceased because all that he was interested in was the realisation of the amount due to him out of the assets of the deceased.
2. Shyam Sundar put forward the case that the deceased had left a minor son on her death and therefore the estate devolved on him and after him on the husband of the deceased. The relations on the father's side of Mt. Ram Devi put forward the case that the minor son had predeceased Mt. Ram Devi and that accordingly on her death her property devolved on her relations on the father's side.
3. Under Order 22, Rule 12 it was not absolutely necessary for the Court below to apply the provisions of Rules 3, 4 and 8 of that Order to an execution proceeding, but it was necessary in order to avoid all future trouble to have all possible claimants before the Court in case they wanted to urge any objection. The Court below however went into this question thinking that It was its duty to proceed under Order 22, Rule 5 and determine the question who was the heir of the deceased., It has recorded a finding in favour of the husband, Shyam Sundar and against Mt. Ram Devi's relations on their father's side. Obviously this was a decision of a dispute between two sets of persons who were claiming to be the heirs of the deceased judgment-debtor. It was not at all a dispute between the decree-holder on the one side and the judgment-debtor on the other.
4. It is quite clear that if in a suit an order had been made tinder Order 22, Rule 5 determining such a question no appeal would have lain there from as no appeal is provided in Order 43, Rule 1. It is equally clear that even in an execution proceeding the order is a summary order deciding who should be treated for the purposes of the execution as the representative of the deceased. It does not purport to decide the dispute between these two sets of claimants for all purposes so as to operate as res judicata in any subsequent litigation that may result out of an independent suit. The effect of the order merely is that the sale would be binding on both these sets of defendants. It would in no way affect the title to any property that may be left over after the decree is satisfied. In these circumstances we do not think that any appeal lies to this Court.
5. There seems to be some conflict between the decision in Parsotam Rao v. Janki Bai (1905) 28 All. 109, and the decision in Rajbahadur v. Narayan Prasad A.I.R. 1926 All. 439. But both these cases related to suits and not be execution proceedings. In the present case we are of opinion that the order passed by the Court below does not fall tinder Section 47, Civil P.C., because in our opinion the question has not arisen between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, within the meaning of that section and it is therefore not necessary to consider which of the two rulings referred to above should be preferred. We accordingly dismiss the appeal.
Disclaimer: Above Judgment displayed here are taken straight from the court; Vakilsearch has no ownership interest in, reservation over, or other connection to them.

Shankar Lal And Ors. vs Shyam Sunder Lal


High Court Of Judicature at Allahabad

23 March, 1934