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Uday Chand Mahatab Bahadur of Burdwan Vs. Phanindra Lal Ghosh and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1944Cal384
AppellantUday Chand Mahatab Bahadur of Burdwan
RespondentPhanindra Lal Ghosh and anr.
Excerpt:
- .....it was a nullity in view of the provisions of the new section. this application succeeded. the decree-holder appealed. the learned district judge dismissed the appeal both on the merits and on the ground that it was incompetent. i am bound to say that i do not understand how it could be held that the appeal was incompetent. the application of the respondent was made under the provisions of section 47, civil p.c. the order made by the munsif was appealable as a decree.2. tho question involves the application of sub-section (2) of section 168a. the execution case was filed on 16th december 1940. the order for attachment was made on 17th december 1940 and the attachment was actually effected on 9th december 1940. the new act came into force on 9th january 1941 and the sale was held on.....
Judgment:

1. This appeal is by the decree-holder, and raises a question with regard to the interpretation of Section 168A, Ben. Ten. Act. The sale was held on 22nd February 1941. The new section came into force on 9th January 1941. The judgment-debtor filed an application asking that the sale be set aside on the ground that it was a nullity in view of the provisions of the new section. This application succeeded. The decree-holder appealed. The learned District Judge dismissed the appeal both on the merits and on the ground that it was incompetent. I am bound to say that I do not understand how it could be held that the appeal was incompetent. The application of the respondent was made under the provisions of Section 47, Civil P.C. The Order made by the Munsif was appealable as a decree.

2. Tho question involves the application of Sub-section (2) of Section 168A. The execution case was filed on 16th December 1940. The Order for attachment was made on 17th December 1940 and the attachment was actually effected on 9th December 1940. The new Act came into force on 9th January 1941 and the sale was held on 22nd February 1941. The case comes within the terms of Sub-section (2). That sub-soction provides that on the application of the judgment-debtor the Court shall direct that on payment by the judgment-debtor of the costs of the attachment, the property so attached shall be released. In the present case no such application was made by the judg-mont-debtor and the property was therefore under attachment when it was sold. As long as the attachment remained in force, the pro- perty was liable to be sold in execution of the docretal dues. The appeal is accordingly allowed, the orders of the Courts below are set aside and the objection filed by the judgment-debtor respondent is dismissed. Respon-dent 1 will pay the costs of the appellant in tho Munsif's Court and in the lower appellate Court. As he has not appeared here, I make no Order as to costs in this Court.


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