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Luchmeeput Singh Vs. Sita Nath Doss - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1882)ILR8Cal477
AppellantLuchmeeput Singh
RespondentSita Nath Doss
Excerpt:
civil procedure code (act x of 1877), sections 2 and 244, clause (c), sections 546 and 588 - appeal from order--decree--execution of decree--security for restitution of property. - .....security be given for the restitution of property, which was about to be taken in execution of decree. the decree was a decree of the second subordinate judge of the 24 parganas, and the execution was pending in his court. now the first point with which we have to deal is concerned with an objection made by the pleader for the respondent to the effect that no appeal lies in this case. undoubtedly, this particular matter does not fall within the enumeration contained in section 588 of the civil procedure code; but we think that the question which has been decided by the order of the subordinate judge is within the meaning of clause (c), section 244--a question arising between the parties to the suit in which the decree was passed and relating to the execution of the decree; that it.....
Judgment:

Field, J.

1. In this case an order was made under Section 546 of the Code of Civil Procedure that security be given for the restitution of property, which was about to be taken in execution of decree. The decree was a decree of the Second Subordinate Judge of the 24 Parganas, and the execution was pending in his Court. Now the first point with which we have to deal is concerned with an objection made by the pleader for the respondent to the effect that no appeal lies in this case. Undoubtedly, this particular matter does not fall within the enumeration contained in Section 588 of the Civil Procedure Code; but we think that the question which has been decided by the order of the Subordinate Judge is within the meaning of Clause (c), Section 244--a question arising between the parties to the suit in which the decree was passed and relating to the execution of the decree; that it was a question decided between the parties is admitted; that it related to the execution of the decree is, we think, manifest from the fact that the execution of the decree has been stopped in consequence of the security having been rejected.

2. The order of the Subordinate Judge is as follows: 'The property which the decree-holder wishes to place in security is situate in the district of Purnea. No enquiry could be made of the validity of the security from this distance. I must not, therefore, act upon such security. The decree-holder may adduce promissory notes or any other tangible security within three days.' Now, if the Subordinate Judge meant to say that he could in no case accept as security the immoveable property situate within any other district than that of the 24 Parganas in which district his Court is located, we think that he was wrong. We think that any such general proposition as this cannot be supported; but having regard to the facts of this particular case, we think that this appeal must be dismissed.

3. The property offered as security belonged, not to the decree-holder himself, but to his son, and his son does not join in the application, or in any other way express his willingness that his property should be hypothecated as security. Then, the title-deeds of the property, or a copy of the towji of the Purnea Collectorate, was not tendered, and the Subordinate Judge, in fact, had no materials whatever upon which he would be justified in approving of the execution of the security-bond which was tendered with the application. Under these circumstances, we think it impossible to say that the Subordinate Judge was wrong in refusing to accept this security; and we shall, therefore dismiss this appeal with costs, but without prejudice to any other proper application for security which may be made to the Subordinate Judge.


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