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Rajani Kanta Shaha Banik Vs. Ramani Mohan Goswami and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1927Cal934
AppellantRajani Kanta Shaha Banik
RespondentRamani Mohan Goswami and ors.
Excerpt:
- .....to put in proper court-fees on the plaint. the property is claimed by the plaintiff under a mortgage-decree and the subsequent purchase by him in execution of the mortgage-decree against the insolvent who is ms father-in-law. his case is that subsequent to his purchase his father-in-law took a lease of the house and has been living in it. the insolvency court ordered the property to be sold as that of the insolvent. the plaintiff applied to that court for determination of his title to the property but the insolvency court upheld the order passed by it for the sale of the property and refused to go minutely into the question of title. thereupon the plaintiff brought the present suit for a mere declaration of his title to the property. both the courts below found that the suit is.....
Judgment:

1. The question raised in this appeal is that the decision of the lower appellate Court is wrong by which that Court has confirmed the decree of the Court of first instance which dismissed the plaintiff's suit on his failure to put in proper Court-fees on the plaint. The property is claimed by the plaintiff under a mortgage-decree and the subsequent purchase by him in execution of the mortgage-decree against the insolvent who is Ms father-in-law. His case is that subsequent to his purchase his father-in-law took a lease of the house and has been living in it. The insolvency Court ordered the property to be sold as that of the insolvent. The plaintiff applied to that Court for determination of his title to the property but the insolvency Court upheld the order passed by it for the sale of the property and refused to go minutely into the question of title. Thereupon the plaintiff brought the present suit for a mere declaration of his title to the property. Both the Courts below found that the suit is barred under Section 42, Specific Relief Act, and that the plaintiff is bound to sue for consequential relief and properly to stamp the plaint. We think that this view is correct. The plaintiff must get not only a declaration of his title but must get rid of the sale of the property as belonging to the insolvent by the insolvency Court. There has been a further complication since the institution of the suit, viz., the property has been sold under order of the insolvency Court and purchased by a third party. The suit, in our opinion, even if it be held to be properly stamped, will be fruitless. The learned vakil for the appellant asks for permission to withdraw the suit. We think that we should give him that permission but he must pay the costs of the respondent in all the Courts.


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