Skip to content


Makunda Lal Kundu and ors. Vs. Priya Nath Moitra - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1919Cal1082,45Ind.Cas.657
AppellantMakunda Lal Kundu and ors.
RespondentPriya Nath Moitra
Excerpt:
res judicata in execution proceedings - civil procedure code (act v of 1908), order xxxiv, rule 5, sub-rule 2--application for final decree, whether can be considered as in continuation of previous application. - .....own behalf and as representatives of the deceased gopi nath, applied on the 30th june 1914 for a final decree for sale in terms of order xxxiv, rule 5, sub-rule (2). after issue of notice upon the judgment debtor a final decree was made on the 19th august 1914.5. next followed the present application for execution on the 8th january 1915, and on the 8th of april an objection by the judgment-debtor to the effect that the widow and not the surviving decree-holders was the legal representatives of the deceased gopi and that in her absence the proceedings could not continue. that objection was decided in favour of the judgment debtor on the 4th december 1915.6. on the 7th december 1915 the widow sarat kamari applied to be made a party as the legal representative of her deceased husband and.....
Judgment:

1. In this appeal it appears that in a suit for sale of certain mortgaged properties a preliminary decree was made on the 31st August 1911. The date for payment was the 12th February 1912.

2. On the 31st September 1911 the judgment-debtor applied for permission to appeal as a pauper and this application was finally dismissed on the 6th of June 1913.

3. Meanwhile one of the decree holders, Gopi Nath Kundu, had died on the 10th April 1913, and at the instance of the judgment-debtor, then appellant, the surviving decree-holders, who are the six brothers of Gopi Nath, were placed on the record as his legal representatives and the proceedings continued against them.

4. The judgment-debtor's appeal having been dismissed, the surviving decree-holders, on their own behalf and as representatives of the deceased Gopi Nath, applied on the 30th June 1914 for a final decree for sale in terms of Order XXXIV, Rule 5, Sub-rule (2). After issue of notice upon the judgment debtor a final decree was made on the 19th August 1914.

5. Next followed the present application for execution on the 8th January 1915, and on the 8th of April an objection by the judgment-debtor to the effect that the widow and not the surviving decree-holders was the legal representatives of the deceased Gopi and that in her absence the proceedings could not continue. That objection was decided in favour of the judgment debtor on the 4th December 1915.

6. On the 7th December 1915 the widow Sarat Kamari applied to be made a party as the legal representative of her deceased husband and on the same day her application was granted.

7. For some reason not made apparent to us, possibly as the result of some faulty arrangement of the record, notwithstanding the final decree of 11th August 1914 which has never been vacited, the widow's application was treated as an application for a final decree.

8. The judgment-debtor thereupon objected that the widow's application not having been made within six months from the date of her husband's death the suit had abated and also that her application was barred by the 3 years' rule of limitation contained in Article 181 of the 1st Schedule to the Limitation Act.

9. The District Judge by his order of the 25th September 1916 gave effect to both these contentions and it is against that order that the present second appeal is preferred.

10. On the facts which we have set out above, it appears to us that unless and until he could succeed in having the final decree of 19th August 1914 set aside, the judgment-debtor should not have been permitted to advance these objections. That final decree was made on the application of the surviving decree-holders for themselves and as the persons who at the judgment-debtor's own instance had been accepted by the Court as the legal representatives of the deceased decree holder. It was further made after notice to the judgment-debtor and cannot be attacked in execution proceedings. Even, however, if the widow's application were properly regarded as one for a final decree, it should, in our opinion, have been referred back to the judgment-debtor's original application for substitution or dealt with under Order XXII, Rule 9, and should next have been considered as in continuation of the application of the 30th June 1914 and therefore as within time.

11. We, therefore, decree this appeal with costs, set aside the order of the District Judge and direct that the appellants be at liberty to p oceed with the execution of the final decree in their favour. We assess the hearing fee at 5 gold mohurs.

12. The appeal having been decreed, the connected application is rejected.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //