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Jagabandhu Biswas and anr. Vs. Srinath Chatterjee and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in18Ind.Cas.392
AppellantJagabandhu Biswas and anr.
RespondentSrinath Chatterjee and ors.
Excerpt:
civil procedure code (act v of 1908), section 115 - not deciding question of limitation--benamdar, suit against in time--addition of principal out of time, whether allowable. - .....and we, therefore, think that the matter comes within the purview of section 115 of the code of civil procedure, and as we have the record and both parties before us, we can proceed to determine that question.3. the question, which arises upon this revision under section 115, civil procedure code, which the learned judge in the lower appellate court has not decided, is whether a furzidar can be added out of time in the shoes of his benamdar who has been sued within time. we are of opinion that this cannot be done. but it does not make any difference in this case, inasmuch as the decree has been given against the benamdar and the respondent does not object to giving up the decree for the rent of the year 1312, against bunwari biswas. the decree of the lower court will, therefore, be.....
Judgment:

1. There is no second appeal in this case under the provisions of Section 153 of the Bengal Tenancy Act, and the appeal must be dismissed with costs.

2. But we find that the lower Court has not decided the question of limitation which was raised in the Munsif's Court and decided by him, and we, therefore, think that the matter comes within the purview of Section 115 of the Code of Civil Procedure, and as we have the record and both parties before us, we can proceed to determine that question.

3. The question, which arises upon this revision under Section 115, Civil Procedure Code, which the learned Judge in the lower Appellate Court has not decided, is whether a furzidar can be added out of time in the shoes of his benamdar who has been sued within time. We are of opinion that this cannot be done. But it does not make any difference in this case, inasmuch as the decree has been given against the benamdar and the respondent does not object to giving up the decree for the rent of the year 1312, against Bunwari Biswas. The decree of the lower Court will, therefore, be modified by expunging the name of Bunwari Biswas from the decree as far as the rent for 1312 is concerned. Both parties will bear their own costs in revision in this Court.


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