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Kartick Chandra Ghose Vs. Ashutosh Dhara - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1912)ILR39Cal298
AppellantKartick Chandra Ghose
RespondentAshutosh Dhara
Cases ReferredPunchanun Bundopadhya v. Rabia Bibi
Excerpt:
execution of decree - decree for money against judgment-debtor personally--judgment-debtor in possession as shebait--civil procedure code (xiv of 1882), sections 244, 378. - .....in his own right, but as shebait of a deity to whom the properties have been dedicated, does the question raised fall within the scope of section 244 or 278 of the civil procedure code of 1882?2. in order that a question may be determined under section 244, it must arise between the parties to the suit in which the decree was passed. the question sought to be raised is not of this description, because while b is a party to the suit in his personal capacity, the claim is advanced by him in his capacity of shebait of a deity who is not a party to the suit.3. in the opinion of the full bench, therefore, the question raised does not fall within the scope of section 244. on the other hand, it falls within the scope of section 278 read with section 280.4. it has been argued, however, that.....
Judgment:

Lawrence H. Jenkins, K.C.I.E., C.J., Woodroffe, Mookerjee, Carnduff and D. Chatterjee, JJ.

1. The question referred for decision to the Full Bench has been formulated in the following terms:

If A, in execution of a decree for money against B personally, attaches and proceeds to sell properties of which B alleges that he is in possession, not in his own right, but as shebait of a deity to whom the properties have been dedicated, does the question raised fall within the scope of Section 244 or 278 of the Civil Procedure Code of 1882?

2. In order that a question may be determined under Section 244, it must arise between the parties to the suit in which the decree was passed. The question sought to be raised is not of this description, because while B is a party to the suit in his personal capacity, the claim is advanced by him in his capacity of shebait of a deity who is not a party to the suit.

3. In the opinion of the Full Bench, therefore, the question raised does not fall within the scope of Section 244. On the other hand, it falls within the scope of Section 278 read with Section 280.

4. It has been argued, however, that this view is contrary to two decisions which are binding upon the Full Bench, namely, Kuriyali v. Mayan (1883) I.L.R. 7 Mad. 255 and Punchanun Bundopadhya v. Rabia Bibi (1890) I.L.R. 17 Calc. 711. The first decision no doubt involves by implication the view that the question raised falls within the scope of Section 244, but it is not finding upon this Court; it was approved by the Judicial Committee in Prosunno Kumar Sanyal v. Kali Das Sanyal (1892) I.L.R. 19 Calc. 683 : L.R. 19 I.A. 166 upon an entirely different point, namely, that Section 214 does not cease to be applicable to proceedings in execution merely because the execution purchaser is a stranger to the suit. The decision in Punchanun Bundopadhya v. Rabia Bibi (1890) I.L.R. 17 Cal. 711 is by a Full Bench of this Court, and is binding till overruled by a Special Bench. It does not, however, decide the question now in controversy, but merely deals with the converse question.

5. The result is that the appeal to the District Judge as also the appeal to this Court must be deemed incompetent. The appeal is, therefore, dismissed with costs of the hearing before the Division Bench and the Full Bench.


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