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Rattanji Vs. Hari Har Dat Dube - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad High Court
Decided On
Judge
Reported in(1895)ILR17All243
AppellantRattanji
RespondentHari Har Dat Dube
Excerpt:
execution of decree - attachment of immoveable property--order striking off application for execution but maintaining attachment--appeal. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section 9 by the employees working in schools..........of the district judge. eventually, on june the 3rd, 1891, the subordinate judge, called on the decree-holder to take some other step in the matter of the execution, and on june the 13th, 1891, as the decree-holder had not taken any such step up to that day, the subordinate judge struck off the case, but maintained the attachment. that order is now under appeal. in our opinion that order is nothing more than a temporary adjournment of an adjudication on the original application for sale, and on the objection taken to it. that application is still pending undisposed of, awaiting orders in the court of the subordinate judge. the order striking it off is in no way a judicial disposal of the application. it does not decide whether the decree can or cannot be executed in whole or in part,.....
Judgment:

Blair and Burkitt, JJ.

1. In our opinion this appeal is quite unnecessary. On the statement of facts it appears that the predecessor in title of the appellant obtained in May 1890, a money decree against the late Rajah Hari Har Dat Dube. It further appears that under the provisions of Section 433 of the Code of Civil Procedure two houses, the property of the Rajah, were attached before judgment. Afterwards, in execution of the decree, an application was made to the Subordinate Judge in July 1890 asking him to direct the sale of the attached houses. The usual sale notifications were issued, and in September 1890, the wife of the judgment-debtor raised objection to the sale, claiming the houses as her own property. The sale was postponed pending the decision of her objections, and also was stayed by order of the District Judge. Eventually, on June the 3rd, 1891, the Subordinate Judge, called on the decree-holder to take some other step in the matter of the execution, and on June the 13th, 1891, as the decree-holder had not taken any such step up to that day, the Subordinate Judge struck off the case, but maintained the attachment. That order is now under appeal. In our opinion that order is nothing more than a temporary adjournment of an adjudication on the original application for sale, and on the objection taken to it. That application is still pending undisposed of, awaiting orders in the Court of the Subordinate Judge. The order striking it off is in no way a judicial disposal of the application. It does not decide whether the decree can or cannot be executed in whole or in part, by sale of the attached houses. It contains no order unfavorable to the decree-holder's right to execute the decree or which in any way prevents the decree-holder from asking the Subordinate Judge now to take up again and dispose judicially of the application made on July the 19th 1890. Execution by sale of the attached houses has up to the present not been refused by the Subordinate Judge. Indeed, so far as the proceedings have gone, they are in favour of the decree-holder's rights, seeing that a notification for sale was issued, though the sale was subsequently postponed. The application for execution in the way specified in that application has so far simply been shelved undisposed of. Under such circumstances we think there is nothing to appeal against. No order, as the law has been understood since the case of Dhonkal Singh v. Phakkar Singh I.L.R. 15 All. 84, and Act No. VI of 1892 has been passed which in any way damnifies the decree-holder. All he has to do is to ask the Subordinate Judge to go on with the proceedings which had been temporarily laid aside in June 1891. When that request is made to the Subordinate Judge it will be for him to consider who is the person against whom, and what the manner in which, execution-proceedings are to be continued, and as to that matter his attention is called to Section 234 of the Code of Civil Procedure and to the case of Hirachand Harjivandas v. Kasturchand Kasidas I.L.R. 18 Bom. 224. It is quite unnecessary and would be premature for us now to enter into the question aa to who is the legal representative of the deceased judgment-debtor. As to that matter we express no opinion upon, and draw no inference from, the finding submitted by the Subordinate Judge on the issue remitted for trial by this Court as to whether Rajah Shankar Dat Dube was or was not the legal representative, within the meaning of Section 234, of the deceased judgment-debtor, Rajah Hari Har Dat Dube. As we consider this appeal to have been unnecessarily brought, we dismiss it with costs.


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