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Nishi Kanta Shaha Mondal and ors. Vs. Kumar Promotha Nath Roy and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1934Cal145
AppellantNishi Kanta Shaha Mondal and ors.
RespondentKumar Promotha Nath Roy and ors.
Cases ReferredTara Prosanna v. Nolmani
Excerpt:
- .....which was instituted so far back as the year 1921 and numbered as suit no. 53 of that year. the present decree-holders seek to recover possession in execution of the decree in the said suit. they are resisted by tenants on the land who were inducted during the pendency of that litigation by harendra lal roy chaudhury who was defendant 1 in the suit of 1921. it is true that these tenants were no parties to that suit. an objection was taken to the execution of the decree by the tennants on the ground that there had been a subsequent suit which was numbered 675 of 1927 by which an exception was taken to the delivery of the lands in suit which were determined not to belong to the present decree-holders and in respect of which their claim was dismissed; and it is generally argued that the.....
Judgment:

Mitter, J.

1. A very forcible argument has been addressed to us by Mr. Jogesh Chandra Roy who appears for the appellants in this case. The appeal arises out of a proceeding in execution in a suit which was instituted so far back as the year 1921 and numbered as Suit No. 53 of that year. The present decree-holders seek to recover possession in execution of the decree in the said suit. They are resisted by tenants on the land who were inducted during the pendency of that litigation by Harendra Lal Roy Chaudhury who was defendant 1 in the suit of 1921. It is true that these tenants were no parties to that suit. An objection was taken to the execution of the decree by the tennants on the ground that there had been a subsequent suit which was numbered 675 of 1927 by which an exception was taken to the delivery of the lands in suit which were determined not to belong to the present decree-holders and in respect of which their claim was dismissed; and it is generally argued that the effect of the dismissal of Suit No. 675 of 1927 is that the decree in respect of which execution has been sought for has been superseded and is no longer capable of execution. These objections seem to have prevailed with the Munsif who has dealt with the matter in the first instance. An appeal, however, was taken by the respondents to the Court of the District Judge of Dacca who has reversed the decree of the Munsif.

2. Two grounds have been debated before us in support of the appeal on behalf of the present appellants. It is argued in the first instance that no appeal lay to the lower appellate Court as the application of the decree-holders was one which was purported to have been made under the provisions of Order 21, Rule 97, Civil PC, and as the present appellants were no parties to the suit the matter could not be dealt with as one between a party to the suit and the representatives of another party to that suit within the meaning of Section 47, Civil PC. It is therefore sought to be argued that the lower appellate Court had no jurisdiction to entertain the appeal which was preferred to that Court. The answer to that contention is that it has been found by the lower appellate Court that these tenants were inducted on this land by Harendra Lal Roy Chaudhury during the pendency of the litigation. In other words leases are granted to them when this litigation of 1921 was pending. In this view it seems to us that these transferees were representatives of the judgment-debtor within the meaning of Section 47, Civil PC. In the well-known commentaries of the Right Hon'ble Sir Dinshaw Mulla or the Code of Civil Procedure at p. 156 of the last edition the learned author states thus:

The term 'representatives' in this section includes not only 'legal representative,' in the sense of heirs, executors or administrators, but also 'representative in interest,' that is any transferee of the decree-holder's interest, or any transferee of the judgment-debtor's interests who, so far as such interest is concerned, is bound by the decree.

3. As the transfers were made pendente lite there can be no question that the tenants appellants were bound by the decree which was obtained aganinst the landlord Harendra lal Roy Chaudhury. A distinction however was sought to be made by Mrs. Roy on the ground that the cases on the basis of which this proposition is stated by the Right Hon'ble Sir Dinshaw mulla are cases either of absolute transfer or are not cases of lease. It appears, however, that the case of Tara Prosanna v. Nolmani AIR 1914 Cal 828 is a case of mortgate; and we do not see any distinction in principle between a transfer by was of sale, a transfer by way of mortgage or a transfer by way of lease. So far as the question of Lis pendens is concerned, this gorund of Mr. Roy therefore fails. The other ground taken is that the lower appellate Court has not put a proper construction on the decree of Suit No. 675 of 1927 in coming to the conclusion that the lands in respect of which execution is now sought for are not covered by any of the plots which were claimed in that suit. Mr. Roy has sought to argue this cawse as if a question was raised in this appeal as to the constuction of the decree in the sense of legal effect. That, however is not eh case before us. (His Lordship after overruling the contention on the findings of facts concluded). The result is that both these grounds on which this fail and the appeal is dismissed with costs. the hearing fee is assessed at two gold mohurs.

Henderson, J.

4. I agree. On the merits the appeal is concluded by the findings of the learned District Judge. He was not concerned with the construction of teh decree. He was merely trying to find out the identity of the disputed land.


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