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Jagannath Prasad Vs. Sheo Narain - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1930All281
AppellantJagannath Prasad
RespondentSheo Narain
Excerpt:
- - the lower appellate court held that although the family of jagannath and ram lal was joint the original attachment held good......was that the order of the collector dated 4th november 1924, was, in effect an order dismissing an execution application for default of the decree-holder, and that therefore the order operated to release the attachment.4. we are of opinion that this point has no force at all. to start with, the collector did not dismiss the execution application for default. we have interpreted, in this court, an order purporting to shelve papers as an order not amounting to dismissal of an application for execution but only as amounting to staying the proceedings for the time being. apart from that, the collector had no jurisdiction to withdraw the attachment effected by the order of the civil court. in any view of the case the attachment subsists.5. a new point was sought to be taken before us. but it.....
Judgment:

Mukerji, J.

1. This appeal has no force. The only point to be decided is whether the order of the Collector dated 4th November 1924 operated to remove the attachment which had been validly made by an order of the civil Court. It appears that a decree was obtained by the respondent Sheonarain against one Ram Lal who died joint with the appellant Jagannath. In the lifetime of Ram Lal, an attachment of his share of the property had been obtained by Sheonarain. After attachment the decree was sent, to the Collector for execution by the Munsiff. While the matter was still pending before the Collector, Ram Lal died. The Collector on 22nd October 1924, was informed by the Tahsildar that Ram Lal was dead and thereupon he directed that the decree-holder should be informed of the fact and the case should be taken on 4th November 1924. On that date the Collector passed the following order:

The judgment debtor is dead. The decree-holder is absent. It is ordered that the case be removed from the list of pending cases (Kharij ho) and the papers be filed (dakhil daftar ho) and that the papers received from the civil Court be returned to the same.

2. On the death of Ram Lal the decree-holder applied to the civil Court, which was the only Court before which an application for bringing on the record the legal representative of the judgment-debtor could be made, to bring Jagannath on the record. Jagannath having been duly placed on the record, the decree-holder applied to the civil Court for the papers being again sent to the Collector, so that the latter might proceed with the execution of the decree. The civil Court, however, thought that a fresh application asking for attachment was necessary. Accordingly a new application was put in on 9th December 1924. When a fresh proceeding purporting to be a new attachment was taken, Jagannath came in with the objection that he was the sole owner of the property attached, and whatever interest Ram Lal possessed in the property had disappeared on the principle of survivorship of the Hindu Law. This raised the question whether the attachment, which had been effected on 22nd April 1924, in the lifetime of Ram Lal, was still subsisting.

3. The first Court upheld the objection of Jagannath and dismissed the application for execution. The lower appellate Court held that although the family of Jagannath and Ram Lal was joint the original attachment held good. That view has been accepted by a learned Judge of this Court and hence this Letters Patent appeal. The only point that was argued before the learned Judge of this Court was that the order of the Collector dated 4th November 1924, was, in effect an order dismissing an execution application for default of the decree-holder, and that therefore the order operated to release the attachment.

4. We are of opinion that this point has no force at all. To start with, the Collector did not dismiss the execution application for default. We have interpreted, in this Court, an order purporting to shelve papers as an order not amounting to dismissal of an application for execution but only as amounting to staying the proceedings for the time being. Apart from that, the Collector had no jurisdiction to withdraw the attachment effected by the order of the civil Court. In any view of the case the attachment subsists.

5. A new point was sought to be taken before us. But it is a settled rule in a Letters Patent appeal not to allow a fresh point to be taken, namely a point which had never been urged before the single Judge. We note that the point sought to be urged was not even taken in the memorandum of appeal. In the result the appeal fails and is dismissed with costs.


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