Skip to content


Umasoondury Dassy Vs. Brojonath Bhuttacharjee, Manager of the Estate of Baroda Prosad Chowdhry - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1889)ILR16Cal347
AppellantUmasoondury Dassy
RespondentBrojonath Bhuttacharjee, Manager of the Estate of Baroda Prosad Chowdhry
Excerpt:
execution of decree - transfer by operation of law--civil procedure code (act xiv of 1882), section 232--right of procedure--execution under bengal act viii of 1869 and act viii of 1885. - .....so far as it was a right at all that belonged to the judgment-creditor, a private right or a mere right of procedure. it is not contested that if it be a right of procedure and nothing more, the new act applies. the old law is to be found in sections 59, 60 and 61 of bengal act viii of 1869. section 59 lays down the procedure to be followed on sale of an under-tenure, and section 61 closes that portion of it by stating when and when not the order of sale shall issue.4. we think the right contended for by the appellant in this case, even if it existed, which we do not decide, was a mere right of procedure, and that the judge in the court below was right in holding that the present execution proceedings must be governed by the procedure now in force. the result is that the appeal will be.....
Judgment:

O'Kinealy and Trevelyan, JJ.

1. In this appeal two points have been raised and discussed at some length. It appears that, after the death of the full owner of the property, the mother took out probate of a will in which she was appointed executrix; that, no doubt, vested the property in her. Afterwards probate was revoked; and that, no doubt, took the estate out of her, and then the estate went to the minor heir. While she had the estate she sued and obtained a decree; and the minor now seeks to have that decree executed.

2. Against the execution two objections have been raised. First, that the minor can have no interest under the decree. The answer to that, we think, is that the lower Court was correct in holding that he had an interest. Section 232 of the Code of Civil Procedure says: 'If a decree be transferred by assignment in writing or by operation of law from the decree-holder to any other person, the transferee may apply for its execution to the Court which passed it.' We think that when the minor succeeds to the estate-which, up to the date it fell into his hands, had been in possession of the executrix-that there was a succession or transfer by operation of law within that section. We therefore think that the minor is in a position to execute the decree.

3. The next point is that the execution must be governed by Bengal Act VIII of 1869, and not by the present Rent Act, and that raises the question whether the mode, in which the decree was executed under the old Rent Act, was, in so far as it was a right at all that belonged to the judgment-creditor, a private right or a mere right of procedure. It is not contested that if it be a right of procedure and nothing more, the new Act applies. The old law is to be found in Sections 59, 60 and 61 of Bengal Act VIII of 1869. Section 59 lays down the procedure to be followed on sale of an under-tenure, and Section 61 closes that portion of it by stating when and when not the order of sale shall issue.

4. We think the right contended for by the appellant in this case, even if it existed, which we do not decide, was a mere right of procedure, and that the Judge in the Court below was right in holding that the present execution proceedings must be governed by the procedure now in force. The result is that the appeal will be dismissed with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //