Jasoda Deye vs Kirtibash Das And Anr. on 2 July, 1891

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Calcutta High Court
Jasoda Deye vs Kirtibash Das And Anr. on 2 July, 1891
Equivalent citations: (1891) ILR 18 Cal 639
Author: T A Ghose
Bench: Tottenham, Ghose


Tottenham and Ghose, JJ.

1. This is an appeal against an order of the Subordinate Judge of Midnapore, dismissing an application for the execution of a decree.

2. The decree-holder is the appellant, Jasoda Deye, and the decree was in respect of a bond by which property was mortgaged. The decree-holder seeks to execute by sale of the mortgaged property in the hands of the judgment-debtor.

3. The application has been refused upon the objection of the judgment-debtor that the decree-holder, Jasoda Deye, obtained a decree only in her capacity of widow of her late husband, Kashinath Das, and that the property really belonged to the estate of Kashinath. Before the decree had been obtained a suit had been brought by the judgment-debtor, as reversioner to the estate of Kashinath, to obtain the removal of the widow Jasoda from her position as possessor of the estate of her husband, and in that suit a Receiver to the estate was appointed; and by the decree passed in that suit the widow was ousted. The Receiver does not appear to have taken any steps whatever to get himself put upon the record as decree-holder in this case or to obtain execution. In fact he has not appeared at all. But, upon the objection of the judgment-debtors, the Subordinate Judge referred to the suit brought by them to oust the widow from possession of the estate, and being satisfied that the consideration for this bond really was part of the property of Kashinath’s estate, he held that not the widow, but only the Receiver was competent to execute the present decree.

4. It has been urged before us that the Subordinate Judge had no choice under the Code of Civil Procedure but to grant execution at the instance of the recorded decree-holder, unless the assignee, whether by conveyance or, as is alleged in the present instance, by operation of the law, should come in under Section 282.

5. Authority for this contention has been shown to us in the case of Khettur Mohun Chuttopadhya v. Issur Chunder Surma 11 W.R. 271 where it was held that the Court was bound to allow execution at the instance of the recorded decree-holder, unless intimation had been given in the regular way prescribed by law for the admission of another person in the decree-holder’s place. And we think that the contention is sound that the decree-holder who appears upon the face of the decree is entitled to execute, unless it be shown by some other person under Section 232 that he has taken the decree-holder’s place.

6. It seems to us, therefore, that in this case we must direct that the execution do proceed at the instance of the decree-holder, Jasoda Deye; but that, under the circumstances, the Court below, being satisfied that the decree really appertains to the estate of Jasoda’s late husband, and it might be dangerous to allow her to receive the proceeds of that decree, will be at liberty to retain the money, if realized, for the purpose of being made over to the appointed Receiver, who will deal with it as part of the estate, of course paying to the decree-holder the income of the capital sum.

7. It is contended on her behalf that she is entitled as widow to the whole of the purchase-money of this property, and that, at all events, if it be her husband’s estate, she is entitled to the value of her life-interest in that. We think it is unnecessary in these proceedings to give any opinion as to whether the decree-holder is entitled to all or any of this money. The only point we have to decide is whether in the eye of the law the recorded decree-holder is entitled to execute the decree, and we think she is. The result is that we must set aside the order of the Court below, and send the case back that execution may proceed. Each party will bear their own costs.

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