Saran Bihari Sahay vs Hamid Hossain and Others

This is an application by the plaintiff decree-holder in the following circumstances : The plaintiff instituted a partition suit on 9th July 1932 and after some reference to arbitration, a final decree for partition was passed on 14th March 1934. On 5th November 1935, the defendants executed a sale deed in favour of Hamid Hossain, the respondent before us, by which they transferred their entire share of three annas and six pies in the partitioned properties to him. The plaintiff applied for delivery of possession by executing the final decree on 17th March 1936 and made Hamid Hossain a party because he was the "representative of the judgment-debtor" within the meaning of Section 47. On 21st August 1936 Hamid Hossain objected on the ground that he was not the legal representative of the judgment-debtor and that the decree could not be executed against him. The learned Subordinate Judge has accepted this objection and has dismissed the execution. The present appeal is against the order dated 1st February 1937.

In our opinion the order is wholly erroneous and must be set aside. The learned advocate for the respondent relies upon the case in Manmatha Nath Chowdhury and Others Vs. Nalinaksha Rai and Others, and upon the observation at page 95 which is to this effect:

The fact that a person is bound by the decree does not necessarily mean that the decree is executable against him : the two things are not identical or synonymous.

In the present case it is to be noticed that the decree is not being executed against Hamid Hossain. The plaintiff decree-holder is merely asking for delivery of that portion of the joint property which has been awarded to him by the final decree; and it is conceded that Hamid Hossain is bound by the decree.

Further, all that the executing Court is required to do is to deliver possession of the property to the plaintiff as determined by the final decree. Whatever rights Hamid Hossain may have under the mortgage or under some other rights, cannot be determined in these proceedings. They will form the subject of a separate suit if and when it is thought convenient to institute it.

The appeal is allowed with costs.