Jagat Narain Singh vs Sripati Nath Roy and Another

Ross, J.—This is an appeal against an order passed by the Subordinate-Judge of Jamtara in execution proceedings on a decree for money obtained by the respondents ;on 1st June 1923, against Raja Sham Lal Singh of Jamtara. It appears that before the date of that decree, which was an exparte decree, and, it is said, before the suit on which the decree was passed was instituted, a. deed had been executed on 10th January 1923, by Raja Sham Lai Singh in favour of his younger brother Madhusudan Singh.

This deed recited that the estate was heavily burdened with, debt from the time of the Raja''s predecessor and also during his own time and that he was unable owing to illness to manage the property and therefore he conveyed the estate to his brother subject to the condition that he was to be paid a maintenance allowance. There were other conditions in the deed to which it is not necessary here to refer. The executant of this deed apparently did not give effect to its terms and the transferee had to bring a suit on 8th December 1924, in order to establish the deed That suit was settled by consent on 14th March 1927. The conveyance was affirmed with some variations of its terms which are not material to the present purpose, and. it was agreed that Jagat Narain Singh, the present appellant, the son of Madhusudan Singh, should be receiver of the estate.

The decree of 1st June 1925 was transferred for execution to the Subordinate Judge of Jamtara who, with the leave of the Subordinate Judge of Asansol who had, appointed the receiver, made him a party to the execution proceedings. By his application the decree holder sought to sell 16 annas of Taluq Pabia, Tauzi 558, and the judgment-debtor was named as Raja Sham Lal Singh. Now this property is one of the properties in the schedule to the conveyance referred to above. The objection taken by the appellant is that there cannot be execution by sale of a property which no longer belongs to the judgment-debtor.

The learned Subordinate Judge seems to have considered that the execution should, proceed on two grounds: first, that Madhusudan, Singh had agreed, to pay off the debts incurred by Sham Lai Singh; and secondly because the Subordinate Judge of Assansol had made the receiver a party and no objection had been raised by the receiver when he was called upon to show cause why the decree should not be executed against the estate. The first ground is apparently untenable. The material recital in the indenture is as follows:

Whereas during the time of said deceased Raja Jang Bahadur Singh, the zimindari described in the schedule below became involved in debt for a large amount and is so involved even now and after his death the said estate has become involved in debt even during the time of Shrijut Raja Shyamlal Singh, and the debts have not been cleared up.

The parties had in contemplation the payment of these debts and these clearly are debts to which the estate is liable and not personal debts of the vendor. There is, however, no covenant to pay the debts by the transferee ; and if there had been such a covenant the present decree-holder would not have been entitled to proceed against the transferee with whom he had no privity: Jamna Das v. Ram Autar Pande [1912] 34 All. 63.

As to the fact that the receiver made no objection to the issue of execution, it is not clear what objection he could have made. He is the receiver of the estate and the allowance payable to Raja Sham Lal Singh must pass through his hands. It was therefore proper to make him a party to this execution; but the fact that he is made a party to the execution will not have the effect of entitling the decree-holder to proceed in execution of a decree against Sham Lal Singh to sell a property which does not belong to Sham Lal Singh ''but belongs to Madhusudan Singh. The learned advocate for the respondents referred to Section 128, T.P. Act. He contends that this transfer is a universal gift and that the donor is liable for the debts of the donor. Assuming that it is a gift, which the appellant does not admit, it would have been necessary for the respondent to obtain a decree against the donor, but he cannot, while affirming the gift proceed against the property as being the property of the donor. If the deed is affirmed, then he has clearly no right to sell the property in execution of this decree against Sham Lal Singh.

It is said that the receiver represents both parties to the conveyance; but he is only receiver because of the conveyance and on the basis of the conveyance, and the fact that as receiver he has been made party is itself a recognition of the conveyance and that instrument destroys the respondents'' right to proceed against this property as the property of his judgment-debtor. In my opinion this execution petition is wholly misconceived, and the decision of the Subordinate Judge is wrong. The appeal must be allowed, and the order for execution muss be set aside. The appellant is entitled to his costs.

There is an application for stay of sale. In view of this decision it is unnecessary to deal with this application, as no sale can now take place.

Fazl Ali, J.

I agree.