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Jagadish Chundra Shaha Vs. Kirpa Nath Shaha - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in1Ind.Cas.783
AppellantJagadish Chundra Shaha
RespondentKirpa Nath Shaha
Cases ReferredJagjivan v. Govardhandas Dayaram
Excerpt:
civil procedure code (act xiv of 1882) sections 244, 295, 588 and 622 - rateable distribution--judgment-debtors not, identical--appeal from order under section 295--order just but passed without jurisdiction--high court, interference by. - .....in the rateable distribution.2. the petitioner has applied to this court under section 622 of the civil procedure code, and has obtained a rule on the opposite party to show cause why the order of the district judge should not be set aside on the ground that it was passed without jurisdiction.3. it is clear that under section 588 of the civil procedure code, an order passed under section 295 of the civil procedure code is not ordinarily appealable; but it is argued on behalf of the opposite party that such an order comes within the scope of section 244 and is, therefore, open to appeal. reference has been made to the case of prosunno kumar sanyal v. kali das sanyal 19 c. 683; l.r. 19 i.a. 166., in which it was laid down that section 244 should be construed with liberality and that a.....
Judgment:

1. In this case the petitioners obtained a decree against certain judgment-debtors. The opposite party had obtained a decree against certain judgment-debtors, who are not exactly identical with those of the petitioners, and had applied for rateable distribution. The Munsif of Dacca refused this application on the ground that the judgment-debtors were not identical. Against this order, the opposite party appealed to the District Judge; and the District Judge, following the decision in Gonesh Das Bagria v. Shiva Lakshman Bhakat 30 C. 583., set aside the Munsif's order and directed that the opposite party should share in the rateable distribution.

2. The petitioner has applied to this Court under Section 622 of the Civil Procedure Code, and has obtained a Rule on the opposite party to show cause why the order of the District Judge should not be set aside on the ground that it was passed without jurisdiction.

3. It is clear that under Section 588 of the Civil Procedure Code, an order passed under Section 295 of the Civil Procedure Code is not ordinarily appealable; but it is argued on behalf of the opposite party that such an order comes within the scope of Section 244 and is, therefore, open to appeal. Reference has been made to the case of Prosunno Kumar Sanyal v. Kali Das Sanyal 19 C. 683; L.R. 19 I.A. 166., in which it was laid down that Section 244 should be construed with liberality and that a question, which concerned an auction purchaser at an execution sale, was none-the-less a question coming within that section.

4. We cannot regard this case as an authority for holding the opposite party in this case, who is a decree-holder under a totally distinct decree, to be a party to the suit, in which the petitioner's decree was passed and entitled therefore to appeal by Section 244 of the Code. We think that the order cannot possibly come within the scope of Section 244 of the Civil Procedure Code; and that, therefore, no appeal lay to the District Judge.

5. Secondly, it is argued on behalf of the opposite party that, although no appeal lay to the District Judge, yet this Court should not set aside his order in the exercise of the discretion vested in it by Section 622 of the Civil Procedure Code.

6. The learned pleader for the opposite party has not, however, been able to show us any case in this Court in which it refused to interfere with an order, which was passed wholly without jurisdiction. By the order of the Munsif the petitioner obtained a right to execute his decree free from the interference of the opposite party. The order giving him this right may, or may not, have been just, but it cannot be set aside except in accordance with the law. The case of Ramasamy Chettiar v. R.G. Orr 26 M. 176. is an authority for holding that in cases like the present the High Court is bound to interfere, and although in Dayaram, Jagjivan v. Govardhandas Dayaram 28 B. 458. the learned Judges refused to interfere; under Section (522 with an order passed without jurisdiction, yet their refusal was based on such special circumstances, as to be no authority to justify us in refusing to exercise the power, which Section 622 gives us in a case like the present.

7. The result is that the Rule is made absolute and the order of the District Judge, dated the 16th May 1908, is set aside.


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