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MainuddIn Talukdar Vs. Rammoni Das and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in4Ind.Cas.167
AppellantMainuddIn Talukdar
RespondentRammoni Das and ors.
Excerpt:
execution - decree--ex parte decree set aside though confirmed on appeal previously--decree setting aside ex parte decree not appealed against. - .....decree of the munsif was set aside and a decree was given in favour of the plaintiff. against this decree the present appellant appealed to the high court and the decree of the lower appellate court was set aside and that of the munsif restored. meanwhile, however, an application had been made under section 108, civil procedure code, to the lower appellate court to re-hear the case, which was done with the same result as before, except that whereas the first appeal was heard not in the presence of the present appellant, the second appeal was heard in his presence. a decree was accordingly drawn up dated the 19th february 1906. this decree has never been appealed against, and we are now asked to stay its execution on the ground that the order of the munsif dismissing the suit having been.....
Judgment:

1. In this case a suit was brought for possession of land before the Munsif by whom it was dismissed. This decision was appealed against before the lower appellate Court and the decree of the Munsif was set aside and a decree was given in favour of the plaintiff. Against this decree the present appellant appealed to the High Court and the decree of the lower appellate Court was set aside and that of the Munsif restored. Meanwhile, however, an application had been made under Section 108, Civil Procedure Code, to the lower appellate Court to re-hear the case, which was done with the same result as before, except that whereas the first appeal was heard not in the presence of the present appellant, the second appeal was heard in his presence. A decree was accordingly drawn up dated the 19th February 1906. This decree has never been appealed against, and we are now asked to stay its execution on the ground that the order of the Munsif dismissing the suit having been restored, there is no suit in which the decree can be executed. The fact of the matter, however, is that the decree of the 19th February 1906 is not appealed against and is, therefore, final. The appellant had his chance of a remedy by appealing against this decree which he did not do; and not only did he not appeal against the decree but when the decree was mentioned by the present respondents to this Court on the occasion when the case was tried before it, he did not admit that this decree had been made. Had he admitted what had in fact happened, this Court would, no doubt, have been able to assist him in having that decree considered by this Court on its merits. This, however, cannot now be done since by lapse of time the decree has become final.

2. The result is that we cannot interfere with the execution of this decree and this appeal is, therefore, dismissed with costs.

3. We assess the hearing fee at two gold mohurs.


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