Babu Krishna Prasad vs Ram Prasad Singh and Others

Ross, J.—This is an appeal against the order of the Subordinate Judge of Patna, dismissing an application for execution on the ground that the decree holders cannot proceed with the execution, because they have not obtained a decree under Order XXXIV Rule 6. The decree of the High Court of Calcutta, which is under execution, is plainly a mortgage-decree as far as the father''s share is concerned and a personal decree as far as the sons'' shares in the property are concerned. The execution can, therefore proceed against the son'' shares, in order to obtain execution against the father a decree under Order XXXIV, Rule 6, is necessary. To this extent, therefore, the appeal must be allowed. The execution will proceed against the shares of the sons, and if the decree-holders desire to proceed against the property of the father other than the mortgaged property, they must obtain a decree under Order XXXIV, Rule 6.

Das, J.

I agree.