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Haranund Mozoomdar Vs. Prosunno Chunder Biswas and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata
Decided On
Judge
Reported in(1883)ILR9Cal763
AppellantHaranund Mozoomdar
RespondentProsunno Chunder Biswas and ors.
Cases ReferredRajaram Tewari v. Luchman Prasad B.L.R. Sup. Vol.
Excerpt:
misjoinder - parties--suit to recover property sold in execution of decree. - .....of bringing one suit against all the defendants, nos. 7 to 11, who purchased at the execution sale different portions of the property in question, they ought to have brought five different suits, one against each of those defendants.3. the plaintiff's case is, that before the execution sale, under which the defendants 7 to 11, purchased these properties, they were purchased by him from the execution-debtors by private contract, and that he took possession of them. these properties were afterwards attached in execution under a decree obtained against the judgment-debtors by the defendants nos. 1 to 3, whereupon the plaintiff preferred a claim to the whole property in the execution proceedings, but the court decided against him; and so it was sold and bought by the defendants 7 to.....
Judgment:

Richard Garth, C.J.

1. We think it clear that the lower Courts have made a mistake in this case.

2. They have dismissed the suit upon the ground that there was a misjoinder of defendants; or, in other words, that instead of bringing one suit against all the defendants, Nos. 7 to 11, who purchased at the execution sale different portions of the property in question, they ought to have brought five different suits, one against each of those defendants.

3. The plaintiff's case is, that before the execution sale, under which the defendants 7 to 11, purchased these properties, they were purchased by him from the execution-debtors by private contract, and that he took possession of them. These properties were afterwards attached in execution under a decree obtained against the judgment-debtors by the defendants Nos. 1 to 3, whereupon the plaintiff preferred a claim to the whole property in the execution proceedings, but the Court decided against him; and so it was sold and bought by the defendants 7 to 11.

4. The plaintiff then brought this suit against the defendants 7 to 11 to set aside the execution sale, and to establish his right to the property under the private sale to himself; and as the judgment-creditors and the judgment-debtors were both interested in the subject of the suit, he very properly made them parties.

5. The only point raised by the defendants upon the merits is, that the alleged sale to the plaintiff was not bon fide, but void as against, defendants Nos. 1 to 3 and 7 to 11; and this, so far as we can see, is really the only question in the cause. But the defendants have raised the preliminary point, upon which the suit has been dismissed by the Courts below, that the plaintiff, instead of bringing one suit, should have brought five separate suits one against each of the defendants 7 to 11.

6. In support of this objection a Full Bench case has been referred to Rajaram Tewari v. Luchman Prasad B.L.R. Sup. Vol. 731: 8 W.R. 13 in which Sir Barnes Peacock in giving judgment observed upon the inconvenience of one suit being brought against several defendants, each of whom had a distinct and separate interest, and each of whose cases depended upon different points and different evidence.

7. That case appears to us to be very clearly distinguishable from the present; and in order to understand the distinction, it is only necessary to pay a little attention to the Full Bench judgment. It will be observed that the defendants in that case claimed under different titles, and that their respective cases depended upon wholly diverse evidence and considerations.

8. The case of each defendant was a separate contest. There was therefore ample reason for the remark of Sir Barnes Peacock at the close of the case: 'The necessity of separating all these different cases in delivering judgment in appeal shows the difficulty and annoyance to which defendants must be put by being joined in one action in respect of different causes of action, to set aside various deeds executed under different circumstances, and in respect of which they have no common interest.'

9. The present is a case of a totally different character. The plaintiff has but one object, namely, to establish his private purchase as against the sale in execution; and the defendants, who contest his claim, have but one defence, which is common to them all, viz., that the plaintiff's purchase is invalid.

10. The plaintiff might, as a matter of strict law, if he had been so advised, have brought five different suits instead of one, each to try the self-same question; but if he had done so, he would probably have incurred a good deal of blame, and not without good reason, for multiplying suits and expense to no good purpose.

11. There is also another consideration in this case, which does not appear to have occurred to either of the Courts below, namely, that by dismissing this suit upon the preliminary point they were depriving the plaintiff for ever of trying his case against the defendants upon the merits. If, as the defendants contend, the plaintiff had but one year after the order in the execution proceedings to bring his suit, the effect of the dismissal of the suit upon this technical ground would have been to bar the door of justice against him for ever.

12. Courts of law should be specially careful in dealing with technical objections to see what effect their decision will have in defeating substantial justice.

13. The case must go back to the Court of First Instance for retrial upon its merits.

14. The respondents must pay to the appellant the costs of the proceedings in all the Courts so far as they have gone, inasmuch as it was at their instance that the preliminary objection has been allowed.


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