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BasiruddIn Sarkar Vs. Elahi Bux Pramanik - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1935Cal645,158Ind.Cas.585
AppellantBasiruddIn Sarkar
RespondentElahi Bux Pramanik
Excerpt:
- .....fraud, coercion and undue influence practised by the judgment-debtor, and it was prayed that the execution proceedings started on 25th september 1931, might be allowed to be reopened. the application for reopening the proceedings, in execution was opposed by the judgment-debtor; and the question for consideration in the case before the court of execution were whether the application for reopening the proceedings was maintainable, and whether the petition of satisfaction of the decree was filed without any payment, by the undue influence, coercion or fraud of the judgment-debtor, as alleged in the application before the court by the decree-holder.2. so far as the first question was concerned, it has been conceded, and there can be no doubt on the authority of the decision of this court.....
Judgment:

1. This appeal has arisen out of an application purported to have been made under Section 151, Civil P.C., but was substantially one under Section 47 of the Code. The appellant in this Court secured a decree against the respondent on 23rd July 1929, for Rs. 729-8-0. The decree so obtained was put into execution on 25th September 1931, and on 16th November 1931 full satisfaction of the decree was entered on an application filed in Court. Thereafter the application giving rise to this appeal was filed by the decree-holder alleging that the petition entering satisfaction of the decree was filed in Court owing to fraud, coercion and undue influence practised by the judgment-debtor, and it was prayed that the execution proceedings started on 25th September 1931, might be allowed to be reopened. The application for reopening the proceedings, in execution was opposed by the judgment-debtor; and the question for consideration in the case before the Court of execution were whether the application for reopening the proceedings was maintainable, and whether the petition of satisfaction of the decree was filed without any payment, by the undue influence, coercion or fraud of the judgment-debtor, as alleged in the application before the Court by the decree-holder.

2. So far as the first question was concerned, it has been conceded, and there can be no doubt on the authority of the decision of this Court from which we see no reason to differ, that it is open to a decree-holder to reopen proceedings in execution of his decree, after satisfaction has been entered by an application in Court, on a proper case being made out. In the case before us, we hold that the appellant was entitled to dispute the validity of the order passed on the petition of satisfaction of decree, and reopen the proceedings in execution, inasmuch as there was the allegation that the order entering satisfaction of the decree was passed on a petition which was filed in Court, owing to undue influence, coercion, and fraudulent representation of the judgment-debtor.

3. The question for decision next was whether there was any fraud, coercion or undue influence as alleged by the decree-holder in his application before the Court, on proof of which, the proceedings in execution, started on 29th September 1931, could be reopened. The Court of execution came to definite conclusion on evidence on this question; but in view of the decision arrived at by the learned Subordinate Judge in the Court of appeal below, that the application for reopening the proceedings in execution was not maintainable under the law, no conclusion was arrived at by him on evidence bearing upon the question mentioned above. The case has therefore to be sent back to the Court of appeal below, for a decision on evidence already on the record of the question raised for determination by the primary Court, whether the petition of satisfaction of the decree was filed without any payment, by the undue influence, coercion or fraud of the opposite party as alleged.

4. It has to be mentioned that we do not agree with the view expressed by the Judge in the Court of appeal below that the appellant by his contract, namely the filing of the petition of satisfaction, was in prosecution of an illegal object that is to say, the composition of a non-compoundable offence, and was not therefore entitled to get the help of the Court for recovering the decretal amount in the present proceedings. In our judgment the appellant was entitled to get relief in the present proceedings, on his succeeding in establishing fraud, coercion and undue influence, as alleged, in his petition before the Court of execution, giving rise to this appeal.

5. In the result the appeal is allowed. The order of the Court of appeal below is set aside, and the case is remanded to that Court for a fresh decision in the light of this judgment. The costs in this case will abide the result on remand. Hearing fee in this Court is assessed at two gold mohurs.


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