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Surendra Nath Biswas Vs. Shyama Charan Mandal - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in42Ind.Cas.466
AppellantSurendra Nath Biswas
RespondentShyama Charan Mandal
Cases ReferredRama Prasad Roy Chowdhury v. Anukul Chandra
Excerpt:
civil procedure code (act v of 1908), sections 47, 63 - appeal--execution proceedings dismissed on the ground that the same were pending in a superior court. - .....different judgment-creditors one and the same property was under attachment in the court of the district judge of alipore and also in the court of the subordinate judge of, that station. an application was made in the court of the subordinate judge praying that proceedings should be taken for the sale of the property in that court. having regard to the provisions of section 63 of the code of civil procedure, the subordinate judge declined to proceed with the application in his court. he was of opinion that such proceedings should be taken in the court of the district judge and being of this opinion he further dismissed the execution case then pending on his file against his order an appeal was preferred to the district judge. the district judge agreed with the subordinate judge in.....
Judgment:

1. In this case it appears that at the instance of two different judgment-creditors one and the same property was under attachment in the Court of the District Judge of Alipore and also in the Court of the Subordinate Judge of, that station. An application was made in the Court of the Subordinate Judge praying that proceedings should be taken for the sale of the property in that Court. Having regard to the provisions of Section 63 of the Code of Civil Procedure, the Subordinate Judge declined to proceed with the application in his Court. He was of opinion that such proceedings should be taken in the Court of the District Judge and being of this opinion he further dismissed the execution case then pending on his file Against his order an appeal was preferred to the District Judge. The District Judge agreed with the Subordinate Judge in holding that the proceeding for the sale of the property should be taken in his Court. But having regard to possible difficulties that might attend the removal of the execution case from the file of the Subordinate Judge, he modified that part of the Subordinate Judge's order and directed that the execution case should remain pending in the Court of the Subordinate Judge until such ' time as the execution proceedings in the District Judge's Court had come to an end.

2. In reliance mainly on the case of Rama Prasad Roy Chowdhury v. Anukul Chandra 27 Ind, Cas. 444: 20 C. L. J. 512. it is contended before us that against the order of the Subordinate Judge no appeal lay to the District Judge. We are of opinion that this contention is not well-founded. In so far as the order of the Subordinate Judge is one declining to proceed with the execution and in so far as it might possibly have the effect, as has been suggested of removing the attachment resting on the property in that Court, the order to our mind is clearly one relating to execution within the meaning of Section 47 of the Code of Civil Procedure and appealable As to the propriety of the Judge's order there is in fact no substantial contest before us, and we think that in so far as it directs that the execution case that was pending on the file of the Subordinate Judge should remain pending on that file instead of being treated as disposed of and dismissed, we are of opinion that his order is correct; and if as against that portion of the Subordinate Judge's order no appeal lay, we accept the order, in that respect, of the District Judge as oar own order and affirm it.

3. The Rule is discharged with costs three gold mohurs.


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