Fida Husain vs Aisha Khatoon and another

Deoki Nandan, J.

This is a judgmentdebtor''s second appeal. Decreeholderrespondent No 1 obtained a decree for recovery of dower debt against the appellant in the sum of Rs.1,30010p. the decree was put into execution and it is said that the goods of the value of about Rs. 8000/ were attached from the possession of the judgmentdebtor by the Court Amin and given into Supurdagi of the second respondent. The decreeholder thereafter obtained an order under Section 145 of the Code of Civil Procedure for proceeding against the Supurdar who was thereupon impleaded as a judgmentdebtor. However, instead of proceeding to execute the decree against the Supurdar, respondent No. 2, the decreeholder, applied for a fresh process for execution against the judgmentdebtor appellint. The judgmentdebtor thereupon filed an objection under Section 47 of the Code of Civil Procedure. The executing Court dismissed the objection on the ground thatthere is no bar to proceeding with the execution against the judgmentdebtor without first proceeding against the Supurdar. The lower appellate Court has affirmed this view and dismissed the appeal.

Learned Counsel for the appellant has contended that the property attached from him by the actual seizure by the Amin, passed into the custody of the Court through the Supurdar, and it is highly unjust not to proceed against the Supurdar and recover the property from him, or its value, and instead to issue a fresh process of execution against him. While it cannot be disputed that the liability of the judgmentdebtor to satisfy the decree subsists so long as the property already attached is not sold and the sale proceeds appropriated to the decree, the Civil Court will make a mockery of themselves if they proceed to issue a fresh process against a judgmentdebtor without first proceeding to recover the property from the Supurdar. Since judgmentdebtor''s property was taken by attachment in execution of the process issued by the Court, it is in the fitness of the things that the Court should lend its fullest aid in recovering that property or its value from the Supurdar, and the judgmentdebtor may be proceeded against only if the property or its valus recovered from Sunurdar is insufficient to satisfy the decree.

The appeal succeeds and is allowed. The issue of fresh process against the judgmentdebtor appellant shall remain in abeyance until such time as all the positive steps for the recovery of the property or its value from Supurdar exhausted. If necessary, stamps should be taken to recover the attached property or its value by the arrest of the Supurdar, of course after duly complying with the procedure and giving him an opportunity to show cause against the same. There will be no order as to costs as the respondents were not represented.