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Ronuo Maifarash Vs. Peru Bepari and Shaik Taiah - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1885)ILR11Cal164
AppellantRonuo Maifarash
RespondentPeru Bepari and Shaik Taiah
Cases ReferredTofail Ahmud v. Banee Madhub Mooherjee
Excerpt:
execution of decree - attachment--attachable property--doors and windows--immoveable property. - .....did really belong to the execution-debtor as against the defendant in this suit.' in this case, that matter has been found as a fact by the two courts, and we shall follow the case that we have referred to in not reviewing the finding upon a question of fact. that is the first point.2. but secondly, this property cannot be attached, forming part, as it does, of an immoveable property, and having no separate existence.3. thirdly, these singular proceedings, in which the right to property, of which these doors and window-frames admittedly form a part, has been incidentally enquired into (as to which the courts below have expressed a decision), cannot be held as in any way establishing any right or absence of right in any person to the house.4. the attachment ought never to have been.....
Judgment:

Pigot, J.

1. In this matter, as it comes before us in second appeal, we think we are bound by the rule followed by the Chief Justice in the case of Tofail Ahmud v. Banee Madhub Mooherjee 24 W.R. 394. That was a suit by an execution-creditor to establish the title of his judgment-debtor to a certain property which was erroneously held in the lower Court to be moveable property, and which this Court pointed out was in truth immoveable property. Notwithstanding which, the Court held (p. 395) ' that the only question which could properly have been tried in this case is, whether the property seized did really belong to the execution-debtor as against the defendant in this suit.' In this case, that matter has been found as a fact by the two Courts, and we shall follow the case that we have referred to in not reviewing the finding upon a question of fact. That is the first point.

2. But secondly, this property cannot be attached, forming part, as it does, of an immoveable property, and having no separate existence.

3. Thirdly, these singular proceedings, in which the right to property, of which these doors and window-frames admittedly form a part, has been incidentally enquired into (as to which the Courts below have expressed a decision), cannot be held as in any way establishing any right or absence of right in any person to the house.

4. The attachment ought never to have been granted, and the suit ought never to have been entertained. And although, in second appeal, we do not set aside the decree of the lower Court, that decree must be altered by striking out of it so much as orders that the door-frames and window-frames shall be liable to attachment or sale.

5. Each party must bear his own costs throughout.


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