Skip to content


Jyotish Chandra Sen Vs. Har Chandra Saha and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1928Cal234
AppellantJyotish Chandra Sen
RespondentHar Chandra Saha and ors.
Cases Referred and Abdul Rahman v. Amin Sharif
Excerpt:
- .....limited by law, the suit abated and died. in august 1916, after the suit had come to an end, uma charan's heirs sold the property in dispute to defendant 1 who alone contested the suit, the other defendants being impleaded merely as pro forma defendants. subsequently, on 5th january 1918, an application was made on behalf of the plaintiff to set aside the heirs in place of uma charan. this application was granted, and, on 5th april 1918, the plaintiff obtained a second ex-parte decree against the heirs of uma charan. thereafter he issued execution and, on 1st november 1919, purchased the property in dispute at the execution sale. as defendant 1 who had purchased the property in the manner which i have stated from uma charan's heirs, was not pre-pired to give the plaintiff possession,.....
Judgment:

Page, J.

1. The decree in this suit cannot stand. The dispute has arisen in this way. The plaintiff-respondent brought a suit for money against one Uma Charan who was the owner of the property in dispute and before judgment obtained an order for attaching the property on 31st August 1915. On 11th November 1915 he obtained an ex-parte decree against Uma Charan. It is common ground, however, that between the date of attachment and the date of the decree Uma Charan died, the result being that as against him the decree was a nullity. As an application was not made for substituting the heirs within the time limited by law, the suit abated and died. In August 1916, after the suit had come to an end, Uma Charan's heirs sold the property in dispute to defendant 1 who alone contested the suit, the other defendants being impleaded merely as pro forma defendants. Subsequently, on 5th January 1918, an application was made on behalf of the plaintiff to set aside the heirs in place of Uma Charan. This application was granted, and, on 5th April 1918, the plaintiff obtained a second ex-parte decree against the heirs of Uma Charan. Thereafter he issued execution and, on 1st November 1919, purchased the property in dispute at the execution sale. As defendant 1 who had purchased the property in the manner which I have stated from Uma Charan's heirs, was not pre-pired to give the plaintiff possession, the present suit was lodged for khas possession and a declaration of the plaintiff's title to the property. Both Courts have decreed the plaintiff's suit.

2. But for the fact that the two Courts have passed a decree in favour of the plaintiff I should have thought that the plaintiff's case was unarguable. It depended upon the attachment before judgment being in existence actually or constructively until after the second ex-parte decree was obtained. But when the suit abated and came to an end on the death of Uma Charan the attachment died with it. In my opinion the appeal is concluded against the respondent both upon principle and by Sasirama Kumari v. Meherban Khan [1911] 13 C.L.J. 243 and Abdul Rahman v. Amin Sharif [1918] 45 Cal. 780. The learned vakij, on behalf of the respondent, sought to distinguish these cases upon the ground that in these two cases the suit came to an end because it was dismissed and a suit which is dismissed differs from a suit which abates. True, the cause of its death is different, but in either case, it is equally dead, and, if it is dead the attachment before judgment dies with it. The second point which is taken is that the-effect of the order setting aside the abatement and restoring the case was to revive also the attachment before judgment. These two cases to which reference has been made are-authorities to the contrary. There is no substance in the plaintiff's case. The appeal, therefore, will be allowed, the decree of the appellate Court and the decree of the Court of first instance set aside and the suit dismissed with costs in all the Courts.

Duval, J.

3. I agree.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //