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Kirti Chandra Daw Vs. BepIn Behari Pal Chaudhuri - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in46Ind.Cas.721
AppellantKirti Chandra Daw
RespondentBepIn Behari Pal Chaudhuri
Excerpt:
execution case, whether can be struck off or dismissed without notice to parties. - .....under attachment and, that being so, most of the judgment-debtors compromised the matter with the decree-holder (sic) it was agreed that as regards their (sic) ability the decree-holder should accept a certain sum in cash and, on the payment being made, their share should be released. it was also provided by the terms of the compromise that pending the payment the attachment should continue. the compromise, however, did not affect the shares of two of the judgment-debtors, namely, one bepin behari pal chaudhury and another who had been adjudicated an insolvent; in fact, the compromise purported to keep alive the rights of the decree-holder as against these two shares. it is quite clear that the attachment subsists as against the shares which were left out. it may further be observed.....
Judgment:

Fletcher, J.

1. This Rule must be made absolute. The facts are these. The decree-holder-petitioner obtained a decree for Rs. 30,000 in the Original Side of this Court. That decree was transmitted to the Court of the Subordinate Judge of Hooghly for execution. It is not necessary to go into the long and various proceedings that have taken place with reference to the execution of that decree. It is sufficient to say that in the end the properties of the judgment-debtors remained under attachment and, that being so, most of the judgment-debtors compromised the matter with the decree-holder (sic) it was agreed that as regards their (sic) ability the decree-holder should accept a certain sum in cash and, on the payment being made, their share should be released. It was also provided by the terms of the compromise that pending the payment the attachment should continue. The compromise, however, did not affect the shares of two of the judgment-debtors, namely, one Bepin Behari Pal Chaudhury and another who had been adjudicated an insolvent; in fact, the compromise purported to keep alive the rights of the decree-holder as against these two shares. It is quite clear that the attachment subsists as against the shares which were left out. It may further be observed that the dismissal of the execution case on the 14th January 1918 was made by the learned Subordinate Judge without any notice, to the decree-holder which, in any case, would be sufficient for setting aside the order so passed. A Judge cannot, without giving notice to the parties, strike off cases and dismiss them in the manner the learned Judge has done in the present case. We, therefore, set aside the order of the 14th January 1918 passed by the learned Subordinate Judge and all we need say at present is that the execution case be restored to the file.

Syed Shamsul Huda, J.

2. I agree.


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