' CH. IJAZ AHMED, J.--Brief facts out of which the present appeal arises are that father of the appellants secured a loan amounting to Rs.4 lac from the respondent and executed demand promissory note dated 12-5-1992, in favour of the respondent for the return of the debt to the respondent. The father of the appellants died and the appellants failed to discharge the debt of their father. The respondent being aggrieved filed a suit for recovery of Rs.4 lac under Order XXXVII, rules 1 and 2, C.P.C. In the Court of District Judge, Jhang. The respondent filed an application for leave to defend. Leave was granted to the respondent by the trial Court. Out of the divergent pleadings of the parties trial Court framed the following issues:--
(1) Whether the plaintiff has no cause of action? OPD
(2) Whether the plaintiff is estopped by his words and conduct to bring the suit? OPD.
(3) Whether the suit is not within time? OPD.
(4) Whether the suit is not maintainable in view of preliminary objection No.2? OPD.
(5) Whether the suit is not maintainable in view of preliminary objection No.3? OPD.
(6) Whether the suit is based upon mala fide? If so, its effect? OPD
(7) Whether the suit is false, frivolous and vexatious? If so, its effect? OPD.
(8) Whether the pronote and receipt in question is inadmissible in evidence in view of preliminary objection No.7? If so, its effect? OPD
(9) Whether the defendants are entitled to special cost if Issue No.7 is proved in the affirmative? If so, to what extent? OPD
(10) Whether the plaintiff is entitled to recover the suit amount? OPP.
(11) Relief.
' The trial Court decreed the suit vide the impugned judgment and decree dated 9-6-1999. The appellants, being aggrieved filed this appeal.
2. Learned counsel for the appellants submits that the respondent did not mention specific property of their father in the contents of the plaint. The debt is charge over the estate of their father. Unless and until the estate of their father is devolved upon the appellants, the appellants are not liable to discharge the debt secured by their father from the respondent. The respondent failed to bring on record sufficient material through reliable evidence to prove that the appellants had inherited the property of their late father. He further urges that the trial Court erred in law to decree the suit of the respondent by misreading of the evidence on record. He further urges that the suit of the respondent was time-barred but the trial Court erred in law to decide Issue No.3 against the appellants as the respondent has only mentioned in para,.2 of the plaint that the Courts were closed on account of holidays without any documentary proof and this fact was not proved by the respondent/plaintiff through documentary as well as oral evidence.
' Learned counsel for the respondent submits that counsel of the appellants did not press Issues Nos.3 and 5 before the trial Court as is evident from paras.Nos.15 and 17 of the impugned judgment respectively. He further submits that the respondent has specifically mentioned in para.2 of the plaint that the appellants have inherited the property of their father and this fact was not specifically denied by the appellants. In their written statement in reply to para.2 of the plaint. Read with preliminary objection No.3 he further submits that after the death of their father the property has been automatically devolved upon the appellants. In support of his contentions he relied upon the following judgments:--
(1) Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1.
(2) Muhammad Hussain alias Muhammad Yar v. Sardar Khan and 11 others PLD 1993 Lahore 575.
(3) Mst. Zargoon and others v. Mst. Shadana and others 2002 CLC 1539.
(4) Abdul Rehman and 5 others v. Amrat PLD 2003 Lahore 186.
(5) Shahbaz and 5 others v. Mehr Muhammad and 6 others 1999 MLD 1140.
' He further urges that the appellants did not attach the affidavit of their counsel who appeared before the trial Court alongwith memorandum of appeal before this Court and also did not specifically take a ground of attack against Issue No.3, therefore, the appellants are estopped to wriggle out from this legal position on the well known principle of estopple and waiver. He further urges that Sarfraz Khan D.W.3, admitted in his cross- examination that the father of the appellants has left residential as well agricultural land, therefore, the findings of the trial Court are in accordance with the evidence on record after proper appreciation of the evidence. In support of his contentions he relied upon the following judgments:--
(1) Ghulam Muhammad and others v. Malik Abdul Qadir Khan and others PLD 1983 SC 68.
(2) Zaman Mahndi and another v. Salehun 1987 CLC 2494.
(3) Muhammad Taquir Anwar Awan v. Haji Muhammad Asghar and two others 2001 CLC 1775.
(4) Abdullah v. Shaukat 2001 SCMR 60.
' Learned counsel for the appellants in rebuttal submits that the appellants have taken a specific ground (Ground A) that the impugned judgment and decree is against law and facts, therefore, the plea of the respondent's counsel that the appellants have not taken a specific attack qua Issue No.3 has no force.
3. We have given our anxious consideration to the contentions of the learned counsel of the parties.
It is pertinent to mention here that the learned counsel for the appellants has only challenged the findings of the trial Court on Issues Nos.3 and 5 before us. It is better and appropriate to reproduce the relevant portions of the impugned judgment that the learned counsel for the appellants did not press Issues Nos.3 and 5 before the trial Court, which are as under:-- ' Issue No.3 "Learned counsel for the defendants did not dispute the said factual position, i.e. Regarding holidays on account of Eid-ul-Azha (underling is ours) Issue No.5 "Learned counsel for the defendants did not press this issue".
' It is pertinent to mention here that the appellants did not attach the affidavit of the counsel who appeared before the trial Court that he did not make the aforesaid concession, therefore, the appellants cannot wriggle out from this concession as the law laid down by the superior Courts in the following judgments:--
(1) Ghulam Muhammad and others v. Malik Abdul Qadir Khan and others PLD 1983 SC 68.
(2) Zaman Mahndi and another v. Salehun 1987 CLC 2494.
(3) Muhammad Taquir Anwar Awan v. Haji Muhammad Asghar and two others 2001 CLC 1775
(4) Abdullah v. Shaukat 2001 SCMR 60.
4. Notwithstanding the fact that the appellants did not press Issue No.5, as noted above, (which relates to the assertion of the appellants in preliminary objection No.3 of their written statement v {{URDU TEXT}} yet it appears appropriate to dilate upon the said controversy. Admittedly, decree under appeal before us was passed against the appellants not in their personal capacity but as the legal representatives of their deceased father, namely Ghulam Farid and the appellants are the judgment debtors. However, in view of section 52 of Code of Civil Procedure, if a decree is passed against a person in his capacity as a legal representative, such decree for the payment of money may be executed from the properties left by the deceased and inherited by such judgment debtor and cannot be executed against the personal assets of such judgment debtor. The said principle has been laid down by the Honourable Supreme Court of Pakistan in a case reported as Agricultural Development Bank of Pakistan v. Sanaullah Khan and others PLD 1988 SC 67, wherein it has been held as under:-- "Similarly in case of money decree the liability of the legal representatives of a party who has died after the passing of the decree extends under section 52 of the C.P.C. To such property of the deceased as is proved to have come into their possession or to the extent of the property of the deceased in respect of which such legal representatives have failed to satisfy the Court that they have duly applied such property of the deceased which came to their possession."
' It has been held in Messrs Industrial Development Bank of Pakistan v. Mst. Raqaiya Begum and others 1986 CLC 1592 that legal representatives could be charged with liability only if property of deceased had come in his hand and he had not unduly disposed of or applied such property.
However, such questions could be decided in execution proceedings. Under section 47, C.P.C., all questions, arising between the parties to the suit in which the decree was passed and relating to the execution, discharge or satisfaction of the decree shall be determined by the Court executing the decree and not by the separate suit.
5. We have examined the record and find that the respondent did not tender any document in evidence, in order to demonstrate that specific properties were inherited by the appellants out of which the decree is to be satisfied. Although D.W.3, Sarfraz, has admitted that certain moveable and immoveable properties were left by the deceased, yet the said assertion of one of the defendants is of no help to the respondent, as he has to prove his own case and cannot succeed on the weaknesses of the opposite party. In case during the execution process, some property is attached in execution of the impugned decree, of course the appellants would be within their rights to raise all such objections by way of filing the objection petition within the purview and scope of section 47, C.P.C. And we have no doubt in our mind that the same would not be decided in accordance with law.
' Upshot of the above discussion is that the present appeal stands dismissed of course with the aforesaid observations with no order as to costs.