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Surendra Nath Goswamy and ors. Vs. Rajani Kanta Das - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in41Ind.Cas.446
AppellantSurendra Nath Goswamy and ors.
RespondentRajani Kanta Das
Excerpt:
civil procedure code (act v of 1908), order xxi, rule 58 (1), proviso, applicability of, where court has no jurisdiction to attach. - .....preferred admittedly under order xxi, rule 58 of the code. the judge has found as a fact that the claim or objection was designedly or unnecessarily delayed; and the proviso to rule 58 prohibits the court from enquiring into the claim or objection when the claim or objection was designedly or unnecessarily delayed. it is said that there are decisions of this court to the effect that that proviso can have no application in certain particular cases, where the court has become possessed of the money in execution by what has been called the usurpation of authority. i do not agree, no decision can cut down the express and clear words used by the legislature, that where the court considers that the claim or objection was designedly or unnecessarily delayed no investigation shall be made. that.....
Judgment:

Fletcher, J.

1. This Rule must be discharged. The objection or claim was preferred admittedly under Order XXI, Rule 58 of the Code. The Judge has found as a fact that the claim or objection was designedly or unnecessarily delayed; and the proviso to Rule 58 prohibits the Court from enquiring into the claim or objection when the claim or objection was designedly or unnecessarily delayed. It is said that there are decisions of this Court to the effect that that proviso can have no application in certain particular cases, where the Court has become possessed of the money in execution by what has been called the usurpation of authority. I do not agree, No decision can cut down the express and clear words used by the Legislature, that where the Court considers that the claim or objection was designedly or unnecessarily delayed no investigation shall be made. That was the preliminary issue for the Court to try as to whether there had been a delay of the nature mentioned in the proviso; and, directly the Court found that there had been such a delay, it was unnecessary for the Court to enter into or consider the other matters that have been complained of. In my opinion, the Rule fails and must be discharged with costs, one gold mohur.

Smither, J.

2. I agree.


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