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AsiruddIn Mondal Vs. Latifannessa Bibi and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1933Cal560
AppellantAsiruddIn Mondal
RespondentLatifannessa Bibi and ors.
Excerpt:
- .....of property was made on 18th december 1924, and there was a further direction for inquiry into mesne profits. these were enquired into and finally there was a decree for mesne profits on 31st january 1928. the decree for possession was put into execution in execution case no. 55 of 1929. within a week after the disposal of that execution case the present execution case for mesne profits was started. the point urged in this appeal is that as the decree for possession of the property was separate from the decree for mesne profits there should have been a fresh issue of notice under order 21, rule 22. we do not think that this point can be sustained.2. the decree for delivery of possession of property as also the decree for mesne profits were passed in the same suit having regard to the.....
Judgment:

1. This is an appeal by the judgment-debtor in an execution proceeding. The only point is whether the execution should fail for want of notice under Order 21, Rule 22, Civil P.C. It appears that there was a suit for partition in which a final decree for delivery of possession of property was made on 18th December 1924, and there was a further direction for inquiry into mesne profits. These were enquired into and finally there was a decree for mesne profits on 31st January 1928. The decree for possession was put into execution in Execution Case No. 55 of 1929. Within a week after the disposal of that execution case the present execution case for mesne profits was started. The point urged in this appeal is that as the decree for possession of the property was separate from the decree for mesne profits there should have been a fresh issue of notice under Order 21, Rule 22. We do not think that this point can be sustained.

2. The decree for delivery of possession of property as also the decree for mesne profits were passed in the same suit having regard to the provisions of Order 20, Rule 12, Civil P.C. The first final decree, which was made on 18th December 1924, gave direction for enquiring into the mesne profits and this was necessary because the amount of the decree had to be enquired into for the purpose of calculation. When this inquiry was finished the result was embodied in the decree for mesne profits; but it does not follow that there were two separate decrees for the purpose of notice under Rule 22, Order 21. Moreover the point has really no substance in this appeal, because execution was still proceeding and the judgment-debtor had notice and he appeared and urged certain objections as to the merits of the claim and these have been disposed of by the executing Court. Moreover by sub-R. (2), Rule 22 the Court is not bound to issue notice, if it considers that the issue of such notice would cause unreasonable delay or would defeat the ends of justice. In the present case 'the executing Court has held that as the present execution was started within a week after the disposal of Execution Case No. 55 of 1929 no fresh notice was necessary. In these circumstances we think that there is no merit in this appeal. The appeal is therefore dismissed with costs; hearing fee five gold mohurs.


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