1 S.B.CIVIL MISC APPEAL NO.664/2006 Devraj Oswal Vs. Vansraj Heerachand Jain DATE OF ORDER : 5.2.2008 HON'BLE MR JUSTICE GOVIND MATHUR Mr. J.L. Purohit, for the appellant(s). Mr. S.C. Maloo, for the respondents. **** By the judgment dated 1.4.2006 learned District Judge, Balotara decreed a money suit against the defendant Jasraj (now dead). During execution proceedings of the decree an application as per the provisions of Order 21 Rule 46 was preferred seeking attachment of the amount with Devraj (younger brother of defendant late Jasraj) said to be received by the defendant Jasraj and further to satisfy decreetal amount. The application was contested by Devraj with assertion that a sum of Rs. 1,84,018/- was credited in his account on 1.4.1997, but on 17.4.1997, 12.5.1997 and on 27.10.1997 Jasraj purchased poplin cloth from him and the amount aforesaid was adjusted against that with a due of Rs.12,174/- towards Jasraj. Before the executing court on behalf of Devraj three persons including himself were examined and 27 documents were exhibited. The decree holder examined NW-1 Yusuf only. By the order impugned dated 1.4.2006 the executing court attached credited capital of 2 defendant – Jasraj and directed Devraj to deposit the sum with interest before the court. By this appeal a challenge is given to the order aforesaid dated 1.4.1996 on the grounds that, (i) learned executing court erred while accepting that the defendant Jasraj was only a Munim of Mataji Cloth Store and by disbelieving the transaction made with Mataji Cloth Store as a transaction with Jasraj, (ii) even if, for the sake of argument, it be accepted that the defendant Jasraj was only a Munim of Mataji Cloth Store, then too, the owner of the shop Smt. Pyari Devi died in the year 1996 and Jasraj being her son became owner of the shop, and as such, the transaction made with Mataji Cloth Store subsequent to death of Smt. Pyari Devi was only with Jasraj, (iii) the poplin purchased was utilized by Jasraj and his son Lalit. Lalit made petticoats of the poplin cloth and sold the same at Madurai and this fact has not been considered properly by the executing court, (iv) the court erred by holding that no income tax returns showing transaction by Devraj with Jasraj were produced before the court and the transaction said to be made was only an attempt to avoid payment of decreetal amount. I have considered the judgment impugned and also the record of the trial court. Before coming to the merits it is pertinent to note that Devraj is real nephew of defendant late Jasraj and Ashok Kumar a 3 witness of the objector is his brother. The another witness Durgaram is Munim of Devraj. Lalit S/o defendant Jasraj was not produced as witness before the executing court. The first contention of learned counsel for the appellant is that in the original suit Jasraj was shown as owner of the Mataji Cloth Store but the plaintiff changed his stand during execution proceedings by mentioning Jasraj as Munim of the shop aforesaid only with view to ignore transaction of Mataji Cloth Store with Devraj, the present appellant. I do not find any substance in the arguments advanced as from perusal of the plaint itself it reveals that the only fact mentioned therein was relating to involvement of Jasraj in business of Mataji Cloth Store, in body of plaint he is not shown as owner of the shop. Mere mention of term 'proprietor' in cause-title in any way does not change status of the defendant with Mataji Cloth Store. The second contention of learned counsel for the appellant that subsequent to death of Smt. Pyari Devi the defendant Jasraj became owner of the shop, and therefore, whatever transaction took place with Mataji Cloth Store is to be treated as transaction with Jasraj himself. This contention is also having no force in view of the fact that as a 4 matter of act the trial court even on basis of the evidence available not found the transaction made with Mataji Cloth Store proved. Pertinent to note here that the trial court in most clear terms found that no income-tax returns were filed by Devraj to prove transaction with Mataji Cloth Store or with Jasraj. I also do not find any force in the contention that Sh. Lalit S/o late Jasraj, after purchase of poplin, made petticoats and sold the same at Madurai. As a matter of fact no evidence to substantiate the contention above was advanced by the present appellant before the executing court. In view of whatever discussed above this appeal is having no merit, and therefore, is dismissed. The order dated 1.4.2006, passed by the learned Executing Court is affirmed. (GOVIND MATHUR),J. Jgoyal