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Akikunnissa Bibee Vs. Roop Lal Das and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported in(1898)ILR25Cal133
AppellantAkikunnissa Bibee
RespondentRoop Lal Das and anr.
Cases Referred and Oudh Behari Lal v. Nageshar Lal
Excerpt:
civil procedure code (act xiv of 1882), section 244 - question in execution of decree--order absolute for sale--transfer of property act (iv of 1882) section 88--question arising as to the order absolute for sale. - .....property in her own right, and contends that the court below ought to have gone into that question in this suit, and not have left her to bring another separate suit to establish her right. but i think a claim such as this ought to be raised and decided in a separate suit, and not in the mortgage suit. if the 4-anna share really belong to the appellant, i think she should assert that right in a separate suit, and that the present suit, in its present stage, ought not to be further delayed in order that this entirely fresh issue may be decided. there is nothing to prevent the appellant bringing such fresh suit.3. then it is said that the court below was wrong in allowing both the minor sons of the deceased mortgagor and the present appellant and a daughter of the mortgagor to be.....
Judgment:

Maclean, C.J.

1. The question we have to decide is whether, when an order absolute for the sale of mortgaged property has been made after an ordinary decree in the mortgage suit has been made, and any question arises as to that order absolute for sale, it is a question relating to the execution of the decree within the meaning of Section 244 of the Code. The point is not res nova in this Court. The cases of Ajudhia Pershad v. Baldeo Singh (1894) I.L.R. 21 Cal. 818 (823); Tiluck Singh v. Parsotein Proshad (1895) I.L.R. 22 Cal. 994; Tara Prosad Roy v. Bhobodeb Roy (1895) I.L.R. 22 Cal. 931 (934) and that of Ranbir Singh v. Drigpal (1893) I.L.R. 16 All. 23 are to the effect that this question should be answered in the negative. I agree in that view. Two other cases in the Allahabad High Court, the cases of Kedar Nath v. Lalji Sahai (1890) I.L.R. 12 All. 61 and Oudh Behari Lal v. Nageshar Lal (1891) I. L. R 13 All. 278 are authorities the other way. I prefer, however, to follow the previous cases, three of which are in this Court. In matters of procedure, and this is a matter of procedure, it is to my mind very important that the decisions of the various Benches of the High Court should, if possible, be in harmony. Otherwise confusion is created in the minds of the suitors and practitioners, and even of the Judges in the lower Courts who, if they find a conflict of view upon a question of practice in the decisions of the High Courts, are placed in a difficulty as to which course to adopt. I hold that this question is not one relating to the execution of a decree within the meaning of Section 244 of the Code.

2. Then it is urged by the appellant that before the decree for sale is made absolute, the Court should inquire into the validity of the claim of the appellant to a 4-anna share in the so-called mortgaged property. The appellant is the sister of the deceased mortgagor. He has died pending the suit, and she is brought upon the record as party to the suit as one of his heirs. Being brought before the Court, she claims a 4-anna share of the mortgaged property in her own right, and contends that the Court below ought to have gone into that question in this suit, and not have left her to bring another separate suit to establish her right. But I think a claim such as this ought to be raised and decided in a separate suit, and not in the mortgage suit. If the 4-anna share really belong to the appellant, I think she should assert that right in a separate suit, and that the present suit, in its present stage, ought not to be further delayed in order that this entirely fresh issue may be decided. There is nothing to prevent the appellant bringing such fresh suit.

3. Then it is said that the Court below was wrong in allowing both the minor sons of the deceased mortgagor and the present appellant and a daughter of the mortgagor to be placed upon the record as the heirs of the deceased mortgagor. But the position is this. The plaintiff does not know who are the heirs. The guardians for the minors allege that the minors are: the appellant alleges the minors are illegitimate, and that the appellant and the mortgagor's daughter are the heirs. Under the circumstances the plaintiff, to make himself secure, brings both of these contending parties before the Court. If either of them consider they are unnecessary parties, they can disclaim any interest in the property, disclaim any right or title to the heirship and thus be dismissed from the suit. In the meantime, in the face of these conflicting claims, I consider the plaintiff was justified in the course he has taken.

4. In my opinion this appeal fails, and must be dismissed with costs.

Banerjee, J.

5. I concur.


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