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Jatindra Nath Bose and ors. Vs. Sarat Chandra Addya - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in51Ind.Cas.375
AppellantJatindra Nath Bose and ors.
RespondentSarat Chandra Addya
Cases Referred and Dorasami Ayyar v. Annasami Ayyar
Excerpt:
civil procedure code (act v of 1908), section 144 restitution - attaching creditor, whether representative of decree-holder. - .....the appellants before us made an application that they should be substituted in place of their co-decree-holder, nolini mohan bose, on the ground that on the 23rd march 1911 they had purchased his two-third share in the decree that they had jointly obtained. this application was refused on the 1st january 1912. meanwhile a creditor of the vendor decree-holder, who is now the respondent before us, had on the 15th july 1911 attached nolini's share in the sale proceeds then lying in the court of first instance. against the order refusing their application for substitution the present appellants preferred an appeal to this court, and by the order of this court made on the 10th june 1913 the substitution for which they prayed was in fact made. in the interval on the 6th september 1912 the.....
Judgment:

Teunon, J.

1. This appeal is directed against an order made by the Subordinate Judge of Hooghly, on an application which purported to be one made under Section 144, Civil Procedure Code. It appears that the appellants before us, who were petitioners in the Court of first instance, along with one Nolini Mohan Bose obtained a decree against certain persons and of the judgment debtors to sale. The sale in execution took place on the 11th June 1911, and on the next following day the appellants before us made an application that they should be substituted in place of their co-decree-holder, Nolini Mohan Bose, on the ground that on the 23rd March 1911 they had purchased his two-third share in the decree that they had jointly obtained. This application was refused on the 1st January 1912. Meanwhile a creditor of the vendor decree-holder, who is now the respondent before us, had on the 15th July 1911 attached Nolini's share in the sale proceeds then lying in the Court of first instance. Against the order refusing their application for substitution the present appellants preferred an appeal to this Court, and by the order of this Court made on the 10th June 1913 the substitution for which they prayed was in fact made. In the interval on the 6th September 1912 the respondent, that is, the attaching creditor, withdrew from the Court the money which he had attached in execution of his decree against Nolini: The application of the appellants then was that he should be called upon to refund this money, and in order to bring the application within the provisions of Section 144, Civil Procedure Code, it was contended in the Court below, as it is contended here, that the creditor who thus withdrew the money belonging to his judgment debtor Nolini is a representative of Nolini as decree-holder in the suit in which the original decree was obtained.

2. In snpport of this contention we have been referred to three oases, Shama Purshad Roy Chowdery v. Hurro Purshad Roy Chowdery 10 M.I.A. 203 ; 3 W.R.P.C. 11 ; 19 E.R. 948 ; 2 Suth. P.C.J. 103. Prosunno Kumar Sanyal v. Kali Das Sanyal 19 C. 683 (P.C) ; 19 I.A. 166 ; 6 Sar. P.C.J. 209 ; 9 Ind. Dec. (N.S.) 898 and Dorasami Ayyar v. Annasami Ayyar 23 M. 306 ; 10 M.L.J. 307 ; 8 Ind. Dec. (N.S.) 616. Of these cases the first two do not appear to us to have any application to the case before us, and the third case, if at all applicable, goes against rather than in favour of the contention that has been advanced by the appellants. The attaching creditor-respondent was no party to the decree in execution of which the properties of certain judgment-debtors been attached, and he was also no party to the proceedings in which the substitution sought for by the appellants, was are not prepared to so extend the scope of Section 144, Civil Procedure Code, as to hold that the respondent is a party or the representative of a party to the decree or order in question.

3. This appeal is, therefore, dismissed with costs. We assess the hearing fee at three gold mohurs.

Greaves, J.

4. I agree.


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