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Kedarnath Goenka Vs. Anant Prasad Singh - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Judge
Reported in(1925)27BOMLR848
AppellantKedarnath Goenka
RespondentAnant Prasad Singh
DispositionAppeal dismissed
Excerpt:
civil procedure code (act xiv of 1882), sections 211, 244 - decree thereunder for ascertainment of profits-application under civil procedure code, 1908, for such ascertainment-proceedings in execution or in suit-order xxii, rule 12, of the civil procedure code, 1908-abatement by death of parties.;an application for the ascertainment of mesne profits in pursuance of a decree made under the civil procedure code, 1882, is a proceeding in execution of that decree, and not a proceeding in a suit, and hence, under 'the civil procedure code, 1908, order xxii, rule 12, upon the death of parties to the suit in which that decree was made, no substitution of new parties is necessary to prevent a possible abatement of the suit. - .....hold that, under the code of of 1882, a proceeding for the ascertainment of mesne profits was a proceeding in execution and that, as the decree, in the present case, was passed under the code of 1882, such proceedings must be held in execution and not in the suit. that being so, order 22, rule 12, applies, and it must follow that substitution was not necessary.2. their lordships have heard a persistent argument criticising the entire authorities cited in the case; they have considered that argument and the authorities; and they now declare that nothing has been urged which would induce them upon this point of procedure to express disagreement with the result arrived at in the courts below.3. in their lordships' opinion, the appeal accordingly ought to be dismissed, and advice will be.....
Judgment:

Shaw, J.

1. The question raised on this appeal is one of procedure. The judgments of the Courts below are concurrent they are gathered together in the final paragraph of the judgment of the High Court, in which Mr. Justice Das says:-

I hold that, under the Code of of 1882, a proceeding for the ascertainment of mesne profits was a proceeding in execution and that, as the decree, in the present case, was passed under the Code of 1882, such proceedings must be held in execution and not in the suit. That being so, Order 22, Rule 12, applies, and it must follow that substitution was not necessary.

2. Their lordships have heard a persistent argument criticising the entire authorities cited in the case; they have considered that argument and the authorities; and they now declare that nothing has been urged which would induce them upon this point of procedure to express disagreement with the result arrived at in the Courts below.

3. In their lordships' opinion, the appeal accordingly ought to be dismissed, and advice will be humbly tendered to His Majesty in that sense.


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