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Sanwal Das Vs. the Collector of Etah - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported in(1924)ILR46All560; 83Ind.Cas.848
AppellantSanwal Das
RespondentThe Collector of Etah
Cases ReferredSital Prasad v. Clement Robson and Co.
Excerpt:
.....the executing court in aligarh, the collector objected to the execution on the ground that as the decree-holder had failed to notify his claim under section 17 of the court of wards act, his demand must be deemed in law to have been satisfied under section 18 of the same act. the decree-holder comes here in second appeal, relying on order xxi, rule 28, of the code of civil procedure and urging that on account of the failure of the collector to take objections before the learned subordinate judge of allahabad, the matter in dispute must be deemed to be res judicata between the parties. 394, and it has been held that the enactment is clearly intended to be of general application and to remove all questions arising out of the decree, such as those dealt with by section 47 of the code and..........was passed, the estate of the judgment-debtor was taken over by the court of wards. the appellant decree-holder applied to the learned subordinate judge to have the collector of etah, as manager of the estate of the judgment-debtor under the court of wards, added on the record and for the decree to be transferred for execution to the court of the subordinate judge of aligarh. the collector was given notice of this application. he apparently at one time contemplated filing objections, for he sent a telegram asking for time to do so. ultimately, however, no objections were filed and an order was passed adding the name of the collector as manager on behalf of the court of wards and transferring the decree for execution to the aligarh district. when the decree came before the executing.....
Judgment:

Mukerji and Daniels, JJ.

1. This is a second appeal by the decree-holder in execution proceedings. The facts are that a simple money decree was obtained by the appellant against one Rao Maharaj Singh in the court of the Subordinate Judge of Allahabad. The judgment-debtor held property in Aligarh. After the decree was passed, the estate of the judgment-debtor was taken over by the Court of Wards. The appellant decree-holder applied to the learned Subordinate Judge to have the Collector of Etah, as manager of the estate of the judgment-debtor under the Court of Wards, added on the record and for the decree to be transferred for execution to the court of the Subordinate Judge of Aligarh. The Collector was given notice of this application. He apparently at one time contemplated filing objections, for he sent a telegram asking for time to do so. Ultimately, however, no objections were filed and an order was passed adding the name of the Collector as manager on behalf of the Court of Wards and transferring the decree for execution to the Aligarh district. When the decree came before the executing court in Aligarh, the Collector objected to the execution on the ground that as the decree-holder had failed to notify his claim under Section 17 of the Court of Wards Act, his demand must be deemed in law to have been satisfied under Section 18 of the same Act. This contention was rejected by the Subordinate Judge but was accepted by the learned District Judge in appeal. The decree-holder comes here in second appeal, relying on Order XXI, Rule 28, of the Code of Civil Procedure and urging that on account of the failure of the Collector to take objections before the learned Subordinate Judge of Allahabad, the matter in dispute must be deemed to be res judicata between the parties. We think that there is no force in this contention. Unless it can be held that the matter has been expressly or impliedly decided between the parties, there is no doubt that the court to which the decree was transferred for execution had jurisdiction to entertain the objection preferred to it. This is expressly laid down in Section 42 of the Code of Civil Procedure. That section has been interpreted by this Court in Sital Prasad v. Clement Robson and Co. (1921) I.L.R. 43 All. 394, and it has been held that the enactment is clearly intended to be of general application and to remove all questions arising out of the decree, such as those dealt with by Section 47 of the Code and the like, from the cognizance of the court which made the transfer. We think that neither the impleading of the Collector as a party as representing the Court of Wards which had taken over the superintendence of the judgment-debtor's estate, nor the order transferring the decree for execution (the latter order might have been, though in fact it was not, passed ex parte) amounts to a decision of the question whether the decree-holder's demand must be deemed to have been satisfied under Section 18 of the Court of Wards Act; and we hold that the judgment-debtor was not precluded from taking this, plea before the learned Subordinate Judge of Aligarh.

2. We accordingly dismiss the appeal with costs.


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