K. S. SHRIVASTAV, J.

( 1 ) BOTH these appeals are being disposed of by this common judgment due to commonality of law and facts involved.

( 2 ) THE 1st respondent had obtained one money decree in O. S. No. 322/80 and another money decree in O. S. No. 334/80 against the 2nd respondent. He filed E. P. No. 14/88 in O. S. No. 322/30 and E. P. No. 15/88 in O. S. No. 334/80. The house bearing Door No-4-15 and 4-15/a (old) and 4-13 (new) has been attached. The appellant, who is the son of the 2nd respondent judgment debtor, filed Objection 167/89 in E. P. 14/88 and objection 171/89 in E. P. 15/88 under Order 21, Rule 58 of the Code of Civil Procedure alleging that the attached house had fallen to his share in the mutual partition effected in the month of December, 1984 and evidenced by registered partition deed, Ex. A1, dated 30-4-1985 and from the date of the partition he has been in possession and enjoyment of the attached house and, therefore, it is not liable to be attached and sold in execution of the decrees against his father. The decree holder - first respondent through his counter denied the claim of the appellant - objector alleging that, knowing fully that the suit then pending against the 2nd Respondent would be decreed, the appellant in collusion with father might have brought into existence the registered partition deed on 30-4-1985 with a view to defeat the claim of the 1st Respondent- decree holder. There was no need to partition the property on 30-4-1985 except with a view to avoid the payment of the debt. The alleged partition deed, Ex. A1, is a sham and collusive document which had been executed with a view to defraud and delay the realisation of the decretal amount. It is pleaded that, in the alternative, the appellant objector is obliged to discharge the debt because it is his pious obligation to do so. It is lastly pleaded that the judgment debtor-2nd Respondent has, through his son, the objector, filed the objection under Order 21 Rule 58 of the Code of Civil Procedure to harass the 1st Respondent-decree holder and to delay the realisation of the decretal amount.

( 3 ) THE Executing Court, on assessment of the evidence on record, taking the view that there was no need to partition the property between the judgment debtor and the objector and the document, Ex. A1, is a collusive document, which was executed to evade payment of the decretal amount, rejected the objection and dismissed E. A. 167/89 and E. A. 171/89.

( 4 ) FEELING aggrieved by the rejection of the objections E. A. 167/89 and 171/89 through a common order, the objector has preferred C. M. A. No. 1133/90 and C. M. A. No. 1134/90 respectively.

( 5 ) NO representation was made on behalf of the 1st respondent decree holder inspite of service of notice of appeal.

( 6 ) RELYING on Pannalal and another v. Mst. Naraini and other (1952)Vol. 3 SCR 544, it is argued on behalf of the appellant that the Executing Court has erred in not relying on the registered partition deed, Ex. A4, dated 21-7-1971 through which agricultural lands had been partitioned between the 2nd Respondent-judgment debtor and the appellant, who is his son, though he was a minor at that time. With the registered partition deed, the Joint Hindu Family consisting of these two persons had disrupted and the 2nd Respondent-father has ceased to be the Karta of the Joint Hindu Family. Admittedly, the 2nd Respondent-judgment debtor had raised the loan from the 1st Respondent-decree holder subsequent thereto and, therefore, the son, who is the appellant, is not obliged to pay the post partition debt, the 2nd partition deed which is a registered instrument and is at Ex. A1 was effected during the pendency of the civil suits and the attached house had been allotted to the appellant. Under these circumstances, the decree holder should have followed the properties that were allotted to him in the second partition done in the month of December, 1984, and evidenced by the registered partition deed, Ex. A1

Click Here to Read the rest of this document