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Fateh Kumar Singh and anr. Vs. Kishen Chand Kachar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1935Cal816
AppellantFateh Kumar Singh and anr.
RespondentKishen Chand Kachar
Excerpt:
- .....cause why execution should not proceed against them and their property was attached and put up to sale. the sale was to take place on 15th march 1932, and it was only then that they filed this objection. in the third place, on 9th march 1932, so far from raising any objection with regard to their liability, they asked that the sale might be postponed in order that they might have an opportunity of paying the decretal amount. the respondent decree-holder consented and the sale was accordingly adjourned. having thus induced the decree-holders to agree to a postponement of the sale they cannot possibly be allowed to turn round afterwards and put in a delayed petition of this sort. the result is that the appeal fails, and is dismissed with costs. we assess the hearing fee at one gold.....
Judgment:

Henderson, J.

1. This is art appeal against an order rejecting an application filed by the judgment-debtors appellants under the provisions of Section 47, Civil P.C. The decree for which execution was sought was passed on the Original Side of this Court against a certain firm, and was then transferred to the Subordinate Judge of the 24-Parganas for execution. The contention of the appellants is that they are not partners of the firm, and that the decree cannot be executed against them personally. It is contended that execution can only proceed against them personally under the provisions of Order 21, Rule 50, Sub-section (2), of the Code, and that is a matter which can only be allowed by the Court passing the decree and not by the Court to which the decree has been transferred for execution. The contention of the respondent is that Sub-section (1) of the rule applies.

2. In our opinion it is not possible for the appellants to contend that they are not personally liable. In the first place, there was a previous execution taken out against them and they filed an objection. They did not proceed with it, and in the end it was dismissed for default. No appeal was preferred against that decision, and it has now been binding. They cannot therefore be allowed to re-agitate the matter all over again. In the second place even in the present execution case, the objection was raised at a late stage. The appellants were called upon to show cause why execution should not proceed against them and their property was attached and put up to sale. The sale was to take place on 15th March 1932, and it was only then that they filed this objection. In the third place, on 9th March 1932, so far from raising any objection with regard to their liability, they asked that the sale might be postponed in order that they might have an opportunity of paying the decretal amount. The respondent decree-holder consented and the sale was accordingly adjourned. Having thus induced the decree-holders to agree to a postponement of the sale they cannot possibly be allowed to turn round afterwards and put in a delayed petition of this sort. The result is that the appeal fails, and is dismissed with costs. We assess the hearing fee at one gold mohur.

Khundkar, J.

3. I agree.


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