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Fakir Chandra GaIn Vs. Giribala Dassya - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtKolkata
Decided On
Judge
Reported in31Ind.Cas.321
AppellantFakir Chandra Gain
RespondentGiribala Dassya
Cases ReferredPunchanun Bimdopadhya v. Babia Bibi
Excerpt:
civil procedure code (act v of 1908), section 47, order xxi, rule 58 - execution, of decree against legal representative of deceased judgment-debtor--property attached--property, if assets of deceased, decision as to--appeal, maintainability of. - .....by those decisions as they stand. this case cannot be distinguished from the full bench case of punchanun bundopadhya v. rabia bibi 17 c. 711. it is quite true that that case was observed upon in the judgment delivered by another full bench of this court in the case of kartick chandra ghose v. ashutosh dhara 12 ind. cas. 163 : 39 c. 298 : 14 c.l.j. 425 : 16 c.w.n. 26. there, the facts were the converse of what they were in the case of punchanun bundopadhya v. rabiu bibi 17 c. 711. but, as is pointed out by the full bench in the case of kartick chandra ghosh v. ashutosh dhara 12 ind. cas. 163 : 39 c. 298 : 14 c.l.j. 425 : 16 c.w.n. 26, the benches of this court are bound by the decision in the case of punchanun bundopadhya v. rabia bibi 17 c. 711 until the same is overruled by a.....
Judgment:

Fletcher, J.

1. This is an appeal against-a judgment of the learned District Judge' of Bankura reversing the decision of the Munsif of the first Court of Bisheripbre. There were certain proceedings in execution. The decree-'holder is the appellant before us; and the respondent is the widow and the legal representative of the judgment-debtor. In execution of the decree, the appellant before us attached a certain property that; stood in the name of the respondent, on the allegation that it formed part of the assets of her deceased husband. The learned Munsif held that it did so. On appeal, the learned District Judge reversed the finding of the Munsif, holding that the property was not a portion of the estate of the deceased judgment-debtor. The only point that has been raised in this appeal is as to whether an appeal lay to the District Judge from the decision of the Munsif, that is, whether the proceedings before the Court were taken under Order XXI, Rule 58, Code of Civil Procedure, or they came under Section 47 of the Code itself. It is not possible to reconcile the various decisions in this Court; but we are bound by those decisions as they stand. This case cannot be distinguished from the Full Bench case of Punchanun Bundopadhya v. Rabia Bibi 17 C. 711. It is quite true that that case was observed upon in the judgment delivered by another Full Bench of this Court in the case of Kartick Chandra Ghose v. Ashutosh Dhara 12 Ind. Cas. 163 : 39 C. 298 : 14 C.L.J. 425 : 16 C.W.N. 26. There, the facts were the converse of what they were in the case of Punchanun Bundopadhya v. Rabiu Bibi 17 C. 711. But, as is pointed out by the Full Bench in the case of Kartick Chandra Ghosh v. Ashutosh Dhara 12 Ind. Cas. 163 : 39 C. 298 : 14 C.L.J. 425 : 16 C.W.N. 26, the Benches of this Court are bound by the decision in the case of Punchanun Bundopadhya v. Rabia Bibi 17 C. 711 until the same is overruled by a Special Bench. That being so we are bound by the decision in that case. There have been two later cases in this Court, one being the case of Ajo Koer v. Gorak Nath 27 Ind. Cas. 321 : 20 C.L.J. 481 : 19 C.W.N. 517 and the other being the case of Upendra Nath Kalamuri v. Kusum Kumari Dasi 27 Ind. Cas. 328 : 20 C.L.J. 485 : 19 C.W.N. 520 : 42 C. 440. The case of Ajo Koer v. Gorak Nath 27 Ind. Cas. 321 : 20 C.L.J. 481 : 19 C.W.N. 517, is substantially the same as the case before us and the learned Judges in that case followed, as they were bound to follow, the decision in Punchanun Bundopadhya v. Rabia Bibi 17 C. 711. The case of Upendra Nath Kalamuri v. Kusum Kumari Dasi 27 Ind. Cas. 328 : 20 C.L.J. 485 : 19 C.W.N. 520 : 42 C. 440. is difficult to distinguish from the case of Punchanun Bundopadhya v. Rabia Bibi 17 C. 711 although the learned Judges who decided that case appear to have found reasons satisfactory to themselves which would differentiate the case from that reported in 20 C. L. J. All that is necessary for us to state in the present case is that we are bound by the decision of the Full Bench in the case of Punchanun Bimdopadhya v. Babia Bibi 17 C. 711. The present appeal, therefore, fails and must be dismissed with costs, one gold mohur.

Teunon, J.

2. I agree.


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