Skip to content


AmiruddIn Mohammed Vs. Surja NaraIn Das and anr. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in66Ind.Cas.127
AppellantAmiruddIn Mohammed
RespondentSurja NaraIn Das and anr.
Excerpt:
civil procedure code (act v of 1908), section 110 - revision--application, supported: by affidavit of pleader's clerk not entertainable--affidavit. - .....refuting to issue an injunction restraining the sale of the property in suit in exeacuton of a mortgage decree obtained by the opposite party. the order was affirmed on appeal by the subordinate judge of jalpaiguri.2. the mortgage-decree has been obtained by the opposite party against certain persons alleged to be the heirs of one nunda ram das. the petitioner's claim to be the real heirs of nanda raja and have instituted a suit for a declaration that the mortgage-decree is not binding on them. the suit is pending before the court of first instance and the petitioners have applied for the issue of a temporary injunction during the pendency of the suit.3. apart from the question whether an application like the present one lies to this court under section 115, code of civil procedure,.....
Judgment:

1. We are asked in the rule to set aside an order of the Munsif of Jalpaiguri refuting to issue an injunction restraining the sale of the property in suit in exeacuton of a mortgage decree obtained by the opposite party. The order was affirmed on appeal by the Subordinate Judge of Jalpaiguri.

2. The mortgage-decree has been obtained by the opposite party against certain persons alleged to be the heirs of one Nunda Ram Das. The petitioner's claim to be the real heirs of Nanda Raja and have instituted a suit for a declaration that the mortgage-decree is not binding on them. The suit is pending before the Court of first instance and the petitioners have applied for the issue of a temporary injunction during the pendency of the suit.

3. Apart from the question whether an application like the present one lies to this Court under Section 115, Code of Civil Procedure, we are of opinion that we ought not to interfere in this matter on the facts of the ease. The petitioners were no parties to the mortgage-decree and their interest, if any, will not therefore be affected by a sale tinker that decree. If the sale is stayed at this stage the decree holder will be kept out of his money for some length of time to which course we do not think he should be compelled. Considering that the petitioners will not be prejudiced in any way by the sale we hold that they have failed to makt out any ate for our interference.

4. We take this opportunity of referring to a practice which has been adopted in this case. The petition has been supported by an affidavit which has been sworn to by a Pleader's clerk. The deponent swears to all the material facts of the effidavit as tree to the information derived by him from the petitioner No. 1. We are sure that if this fast had been brought to the notice of the Court at the time when the application was presented this rule would not have been issued on the present application. We do not consider that an application supported by such an affidavit is one of which this Court ought to take any cognizance.

5. This rule is discharged with scats. Hearing fee two gold mohurs.


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