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Chattrapat Singh Vs. Jadukul Prosad Mukerjee and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1893)ILR20Cal673
AppellantChattrapat Singh
RespondentJadukul Prosad Mukerjee and ors.
Cases ReferredLakshmi v. Kuttunni I.L.R.
Excerpt:
civil procedure code (act xiv of 1882), section 295, 311 - rateable distribution of sale-proceeds--sale in execution of decree--execution proceedings--'decree-holder.' - .....that this appeal must be dismissed. by an order made in this case the appellant was held to be not entitled to come in under section 295 and share in the rateable distribution of the sale-proceeds in this case. that order was made by the subordinate judge on the 19th of last march. application was made to this court to a divisional bench, of which one of the present bench was a member, for a rule under section 622 for the purpose of having that order of the 19th of march reviewed; and inasmuch as that order was made in express and direct obedience to the decision of the court in deboki nundun sen v. hart i.l.r. 12 cal. 294 referred to in it, we thought that a rule under section 622 ought not to be granted in respect of a decision of the lower court clearly following the law as it stood.....
Judgment:

Pigot and Banerjee, JJ.

1. We think that this appeal must be dismissed. By an order made in this case the appellant was held to be not entitled to come in under Section 295 and share in the rateable distribution of the sale-proceeds in this case. That order was made by the Subordinate Judge on the 19th of last March. Application was made to this Court to a Divisional Bench, of which one of the present Bench was a member, for a rule under Section 622 for the purpose of having that order of the 19th of March reviewed; and inasmuch as that order was made in express and direct obedience to the decision of the Court in Deboki Nundun Sen v. Hart I.L.R. 12 Cal. 294 referred to in it, we thought that a rule under Section 622 ought not to be granted in respect of a decision of the lower Court clearly following the law as it stood upon the last decided case. The learned pleader for the appellant has asked us in this case, it being an appeal, to examine the decision in Deboki Nundun Sen v. Hart I.L.R. 12 Cal. 294,* arguing that it was not one which was wholly satisfactory. Upon this appeal that matter does not arise, because as between the parties in these proceedings the order of the 19th of March is final, and it finally decides that the appellant is not entitled to coma in under Section 295 for a rateable distribution. Not being entitled to do that, we think we must hold that he was not entitled, as he has sought to do in the present proceedings, to challenge the sale and to be heard for the purpose of setting it aside under Section 311 of the Code. The case of Lakshmi v. Kuttunni I.L.R. 10 Mad. 57 decides that a decree-holder who would be entitled to come in under Section 295 is included within the term 'decree-holder' in Section 311. It is argued by Baboo Mohini Mohun Roy that that is an erroneous view of the section; but it is not necessary for us to follow the learned pleader in discussing that decision, because that decision certainly goes so far as this, viz., that one who is not entitled to come in under Section 295 certainly is not included within the words 'decree-holder' in Section 311. That, we think, is the fair conclusion to be derived from the opinion expressed by the learned Judges in that case, although the point was not actually decided in it. In any case, we are of opinion ourselves that outside of those entitled under Section 295 to come in, the power of applying under Section 311 certainly does not exist; and as the appellant is not such a person, he is not entitled to apply to set aside the sale under Section 311.

2. The decision of the Court below is therefore right, and the appeal must be dismissed with costs.

* 'Of course only in contemplation of a possible reference to a Full Bench.'- Note inserted at the desire of the Judges of the Bench.


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