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Jagannath Mondul and ors. Vs. Jaladhar Mondal - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in40Ind.Cas.839
AppellantJagannath Mondul and ors.
RespondentJaladhar Mondal
Excerpt:
civil procedure code (act v of 1908), section 47, order xlvii, rule 1 - application falling within section 47 purporting to be under order xlvii, rule. 1--form of application--appeal. - .....on july 19, 1915. on july 16, 1915, however, a petition was filed purporting to be made by the decree-holder, certifying that he had received payment in full and asking for the execution case to be dismissed. on july 19, 1915, the learned munsif dismissed the case on full satisfaction. on july 24, 1915, the decree-holder put in a petition saying that he had not received the money, that the certificate was a forgery, and asking for sanction to be granted under section 195, criminal procedure code, or a prosecution ordered under section 476, criminal procedure code. again on august 6, 1915, the decree-holder put in two petitions asking that the order passed on july 19 should be cancelled and that the execution case should be allowed to proceed. on these petitions the court held an.....
Judgment:

Walmsley, J.

1. The opposite party obtained a rent decree against the petitioners, and applied for execution by sale of the holding. The holding was advertised for sale on July 19, 1915. On July 16, 1915, however, a petition was filed purporting to be made by the decree-holder, certifying that he had received payment in full and asking for the execution case to be dismissed. On July 19, 1915, the learned Munsif dismissed the case on full satisfaction. On July 24, 1915, the decree-holder put in a petition saying that he had not received the money, that the certificate was a forgery, and asking for sanction to be granted under Section 195, Criminal Procedure Code, or a prosecution ordered under Section 476, Criminal Procedure Code. Again on August 6, 1915, the decree-holder put in two petitions asking that the order passed on July 19 should be cancelled and that the execution case should be allowed to proceed. On these petitions the Court held an enquiry into the circumstances, and on February 19, 1916, both petitions were dismissed, on the finding that the money had really been paid. The decree-holder appealed, and the learned District Judge reversed the finding of the Munsif and ordered execution to proceed.

2. The judgment-debtors obtained this Rule calling on the decree-holder to show cause why the order of the District Judge should not be set aside.

3. On behalf of the petitioners it is urged that the applications of August 6, 1915, must have been made under Order XLVII and that no appeal lay against an order rejecting them. It is also said that the only remedies open to the decree-holder were an application for review of judgment, and an appeal against the order dismissing the application for execution on full satisfaction.

4. The decree-holder did not take the latter alternative, and I cannot understand how it would have been possible for him to appeal against an order which prima facie was made with his full consent, with no material on the record by which he could challenge its correctness. It seems to me clear that it was his duty to ask the Court of First Instance for an enquiry about the genuineness of the petition filed on July 15, and that is the step he took. No doubt the words 'Order XLVII, Rule 1' are to be found in his application and in the order sheet, but that is of no moment: We have to look at the substance of his applications. Now he did not allege that the Munsif had made a mistake, he did not offer new and important evidence to be considered with the other materials on which the order was passed, but he went to the root of the matter, and attacked the petition of satisfaction which formed the sole basis of the order. 1 fail to see how an application of this nature can be regarded as an application for a review of judgment. It is one which would have taken the form of a suit but for the provisions of Section 47 of the Civil Procedure Code, and I regard it as an application under that section. It follows that an appeal did lie to the District Judge.

5. The learned Vakil has conceded, very properly, that having regard to the findings of fact recorded by the learned Judge he cannot press the petition on the merits.

6. The Rule, therefore, is discharged with costs, five gold mohurs.

Beachcroft, J.

7. I agree.


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