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Uzir Gazi and anr. Vs. Meher Naskar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in57Ind.Cas.898
AppellantUzir Gazi and anr.
RespondentMeher Naskar
Excerpt:
civil procedure code (act v of 1908), sections 47, 151 - application by decree-holder to set aside order entering satisfaction of decree on ground of fraud of judgment-debtor, whether maintainable--regular suit, whether lies. - .....1917. on the 5th may, she got the decree transferred to the court at baruipur and she attached the decree obtained by the gazis against meher ali, and on the 28th may satisfaction of the full amount payable under the decree obtained by the gazis against maher ali was entered upon the decree. in the meantime, on the 22nd may 1917, the gazis applied to the small cause court judge at sealdah for setting aside the decree obtained by dassi bibi against them. the application was disposed of on the 1st october 1917, when the ex parte decree was set aside by the small cause court at sealdah. on the 1st march 1918 the present application for execution was made by the gazis against meher ali and along with it an application was made for setting aside the order entering satisfaction of the decree......
Judgment:

1. This appeal arises out of an order passed in certain proceedings taken in connection with the execution of a decree under the following circumstances. The appellants before us, Uzir Gazi and another, obtained a decree in the Second Munsif's Court at Baruipur against the respondent Meher Ali in Suit No. 616 of 1915 on the 13th July 1916. One Dassi Bibi obtained an ex parte decree against the said Uzir Gazi and another in the Small Cause Court at Sealdah on the 3rd May 1917. On the 5th May, she got the decree transferred to the Court at Baruipur and she attached the decree obtained by the Gazis against Meher Ali, and on the 28th May satisfaction of the full amount payable under the decree obtained by the Gazis against Maher Ali was entered upon the decree. In the meantime, on the 22nd May 1917, the Gazis applied to the Small Cause Court Judge at Sealdah for setting aside the decree obtained by Dassi Bibi against them. The application was disposed of on the 1st October 1917, when the ex parte decree was set aside by the Small Cause Court at Sealdah. On the 1st March 1918 the present application for execution was made by the Gazis against Meher Ali and along with it an application was made for setting aside the order entering satisfaction of the decree. This latter application appears to have been made under Sections 141, 144, 151 and 152 and Order XLVII, Rules 1 and 2, of the Code of Civil of Procedure. The Court of first instance was of opinion that the order could not be set aside by an application for review nor under the other sections, and that the proper thing for the Gazis to do was to bring a regular suit. On appeal the learned Subordinate Judge also held that the application could not be maintained under the sections mentioned above, that there was no appeal against, an order rejecting an application for review and that the provisions of Section 144 did not apply specially, as Dassi Bibi who had originally been made a party to the present proceedings had been struck off from the record. He accordingly dismissed the appeal. The Gazis have appealed to this Court.

2. Now the case of the appellants is that the decree which had been obtained by them against Meher Ali has not, in fact, been satisfied, that Dassi Bibi is merely a fictitious person and that the entry of satisfaction of their decree has been fraudulently obtained by the judgment debtor Meher Ali. If these facts are proved to be true, the matter will then some under Section 47 of the Code as being a question relating to the satisfaction of the decree as between the decree-holder and the judgment-debtor. If the appellants fail to prove that the satisfaction of the decree was fraudulently entered in the decree, they cannot proceed against Meher Ali at all whatever their remedy may be against Dassi Bibi. We do not see, therefore, how the appellants, the Gazis, can maintain a regular suit as against Meher Ali, as the provisions of Section 47 will be a bar to such a suit.

3. It is contended on behalf of the respondent that although the question might relate to the satisfaction of the decree as between the parties to the suit, the order entering satisfaction of the decree has to be set aside. But if the Gazis succeed in proving the case set up by them, the order may be set aside under Sections 47 and 151 of the Code.

4. It is further contended on behalf of the respondent that the Munsif did go into the question and came to a finding that the appellants had failed to prove their case. But the learned Munsif was of opinion that the matter could not be gone into except in a regular suit and apparently, he did not try the question on the merits properly.

5. The order was treated by the learned Subordinate Judge as an order rejecting an application for review and there was no appeal against that order. That being so, no second appeal lies to this Court but having regard to all the circumstances of the case, we treat this appeal as an application under Section 115 of the Code.

6. We, accordingly, set aside the orders of the Courts below and direct the Court of first instance (after allowing the Gazis to make the necessary amendment) to go into the merits of the application and dispose of the case according to law.

7. Costs, bearing-fee one gold mohur, will abide the result.


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