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Dharanidhar Ghose Vs. Janaki Nath Mukherjee and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1947Cal18
AppellantDharanidhar Ghose
RespondentJanaki Nath Mukherjee and ors.
Cases ReferredChandra Kumar De v. Kusum Kumar Roy
Excerpt:
- .....does not arise in this case. further, this question does not arise between the parties to the suit. the learned advocate for the appellant relied upon a decision of this court in. chandra kumar de v. kusum kumar roy : air1925cal57 . in that case, however, the court did not consider the question whether the order related to a question between the parties to the suit. on the other hand, a decision of the allahabad high court rather goes to indicate that an appeal against an order refusing to execute an order passed in favour of the commissioner is not appealable. we are, therefore, of opinion that the present appeal is incompetent. the learned advocate for the appellant thereafter applied before us for treating the memorandum of appeal as a petition for revision in this case. there is.....
Judgment:

1. This appeal arises out of an application for execution of an order of the Subordinate Judge, 1st Court, Hooghly, dated 19-8-1943. This order was made in favour of the Commissioner of partition in a suit for partition. The order is in these terms : 'The plaintiff and defendants were repeatedly asked to pay but did not pay to the Commissioner. The Commissioner may execute the Court's order against the plaintiff and defendants to realise his dues.' The learned Subordinate Judge has dismissed the Commissioner's application for execution. Under Section 36, Civil P.C., the provisions of this Code relating to the execution of decrees shall, so far as they are applicable, be deemed to apply to the execution of orders. The matters of procedure laid down in Order 21, Civil P.C. for execution of decrees, will, so far as applicable, apply to execution of orders, which are not decrees. The Commissioner has appealed to this Court against the order rejecting his application for execution.

2. A preliminary objection was taken by the learned advocate on behalf of the respondents as to the maintainability of the appeal. This preliminary objection must prevail. The proceedings for execution of the order in question do not come under Section 47, Civil P.C., as a question relating to execution, discharge, or satisfaction of a decree does not arise in this case. Further, this question does not arise between the parties to the suit. The learned advocate for the appellant relied upon a decision of this Court in. Chandra Kumar De v. Kusum Kumar Roy : AIR1925Cal57 . In that case, however, the Court did not consider the question whether the order related to a question between the parties to the suit. On the other hand, a decision of the Allahabad High Court rather goes to indicate that an appeal against an order refusing to execute an order passed in favour of the Commissioner is not appealable. We are, therefore, of opinion that the present appeal is incompetent. The learned advocate for the appellant thereafter applied before us for treating the memorandum of appeal as a petition for revision in this case. There is no ground for revision under Section 115, Civil P.C. The result is that this appeal is dismissed, but there will be no order as to costs in this appeal. No order is necessary on the connected rule.


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