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Kamini Kumar Saha Chaudhury and anr. Vs. Abdul Rahim and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1919Cal202,53Ind.Cas.67
AppellantKamini Kumar Saha Chaudhury and anr.
RespondentAbdul Rahim and ors.
Cases ReferredGadadhar Panda v. Shyam Churn Naik
Excerpt:
civil procedure code (act v of 1908) section 47, order xxi rule 2 - execution of decree--satisfactian of decree, allegation of, whether can be investigated-certification, 'absence of, effect of. - .....the decree had been satisfied, and the courts below have given effect to that objection.2. the decree holder has appealed to this court and it has been contended on his behalf that the satisfaction or adjustment of the decree had not been certified to the court as aid down by law.3. it appears that a petition was put in on behalf of the agent of the decree holder in another execution case certifying satisfaction of the decree in that case, and it was recited in that petition that nothing further remained due to the decree holder on account of any other decree.4. no application was put in the execution ease in which the decree now in question was being executed at that time. it appears that the agent of the decree holder promised to certify the satisfaction of this decree also.5. some.....
Judgment:

1. This appeal arises out of an application for execution of a decree. The judgment-debtor objected to, the execution on the ground that the decree had been satisfied, and the Courts below have given effect to that objection.

2. The decree holder has appealed to this Court and it has been contended on his behalf that the satisfaction or adjustment of the decree had not been certified to the Court as aid down by law.

3. It appears that a petition was put in on behalf of the agent of the decree holder in another execution case certifying satisfaction of the decree in that case, and it was recited in that petition that nothing further remained due to the decree holder on account of any other decree.

4. No application was put in the execution ease in which the decree now in question was being executed at that time. It appears that the agent of the decree holder promised to certify the satisfaction of this decree also.

5. Some evidence was taken in this case and the learned Munsif came to the finding that 'the judgment-debtor has proved the payment in satisfaction of the decree and judgment-debtor has been fraudulently kept out of all means of exercising his right to apply in Court.' The learned District Judge, however, has not gone into this question, which can be investigated under Section 47 of the Code [see Gadadhar Panda v. Shyam Churn Naik 12 C. W. N. 485.].

6. We think, therefore, that the case should go back to the lower Appellate Court in order, that the question maybe inquired into and the case disposed of according to law. Both parties will be entitled to adduce evidence. The lower Appellate Court may direst the Court of first instance to take the evidence required and send it up to that Court.

7. Costs one gold mohur to abide the result.


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