Binda Prasad and Others vs Ahmad Ali and Another

The respondents are the holders of a decree dated the 28th March 1855, and have applied for its execution against the appellants who are the representatives of one Sheo Din Rai by realization of Rs. 5,865-11-11, from the judgment-debtor''s property.

It appears to us that the objection taken by the appellants is valid, that the respondents cannot recover the money under this decree from appellants.

There was a decree dated 9th June 1847 against Sheo Din Rai for a sum of money, and in its execution certain ladies objected to the sale of certain property, claiming it in their own right.

The decree-holder in consequence brought a suit against them and the judgment-debtor, Sheo Din Rai, and it was in this suit that the decree dated 28th March 1855, which is now in execution, was made.

The object of that suit was to have certain property claimed by the ladies declared liable to sale in execution of the decree of 1847, and if the judgment and decree be examined it will be seen that the claim was only decreed against the ladies, and the decree was in effect a declaration that the property was not the property of the ladies, and so far as their claim to it was concerned, it was liable to satisfy the decree of 1847. The decree-holder cannot realize the balance of the decree of 1847 under the decree of 1855, by executing it against those who are the judgment-debtors under the former decree, but this is what he has been doing. The balance still (sic) decree of 1847 can only be recovered in execution of that decree, and (sic) no answer to the objection that respondent has on previous occasions taken out execution in the same way without opposition on the part of the appellants. There has been a grave illegality which no acquiescence in the past can justify.

We decree the appeal and set aside the orders of the lower Courts with costs.