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Romesh Chandra Saha Vs. Kala Ganji and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in50Ind.Cas.331
AppellantRomesh Chandra Saha
RespondentKala Ganji and ors.
Excerpt:
civil procedure code (act v of 908), order ii, rule 2, order xxi, rule 2 - abandonment of claim--possession, suit for--items of property omitted from schedule, whether abandoned--execution of decree--adjustment--uncertified payment, whether can be allowed. - .....out of which the present appeal arises by a hindu lady called radharani, who was the widow of one kailash chunder saha. the decree was a preliminary mortgage decree. the date of that decree was the 10th of august 1907. on the 28th september 1912 radharani died and the final decree in that mortgage suit, which was made on the 3rd november 1913, was expressed to be made in favour of one kumudbaudhu saha, who alleged that he was the son adopted by radharani under a power from her late husband kailash chunder saha. the present appellant before us subsequent to that instituted a suit claiming to be the sole heir of kailash chunder saha and entitled to the properties left by him on his death. that suit was decreed in favour of the present appellant on the 20th april 1916 and in november of.....
Judgment:

Ernest Fletcher, J.

1. This appeal is preferred by the decree-holder against the order of the learned District Judge of Tipperah, dated the 4th of September 1917, affirming the decision of the Munsif of Brahman-baria. The facts are these: A decree was obtained in the suit out of which the present appeal arises by a Hindu lady called Radharani, who was the widow of one Kailash Chunder Saha. The decree was a preliminary mortgage decree. The date of that decree was the 10th of August 1907. On the 28th September 1912 Radharani died and the final decree in that mortgage suit, which was made on the 3rd November 1913, was expressed to be made in favour of one Kumudbaudhu Saha, who alleged that he was the son adopted by Radharani under a power from her late husband Kailash Chunder Saha. The present appellant before us subsequent to that instituted a suit claiming to be the sole heir of Kailash Chunder Saha and entitled to the properties left by him on his death. That suit was decreed in favour of the present appellant on the 20th April 1916 and in November of the same year the present appellant made the present application. But the lower Courts have refused the application.

2. The first ground on which the lower Courts refused it was that the decree had been satisfied. But that was not the first point. The first point that the present appelant asked to be decided was whether he should be substituted, as the decree formed a portion of the estate of the deceased Kailash Chunder Saha. It obviously does form a portion of the estate of Kailash Chunder Saha. It is argued that the decree was expressly made in favour of Radharani as representing the estate of Kailash Chunder Saha. That matter, however, is not before, us. That must form the subject of a further enquiry. What is clear is that it has been judicially determined that the present appellant Romesh is entitled as the heir of Kailash Chunder Saha to all his properties. In the suit in which be established that, it is quite true that the present decree was not given in the schedule to the plaint as a portion of the property of the deceased Kailash which the appellant stated he had succeeded to. But in his plaint in that suit, the present appellant alleged that he only gave the particulars of the estate of Kailash Chunder Saha in so far as they then had come to his knowledge. There is nothing to preclude him, if he can, from showing that this decree forms a portion of the property of Kailash Chunder Saha. If it is a portion of the property of Kailash Chunder Saha, then the appellant is entitled to be substituted. Directly the question comes for judicial determination, the Court should consider whether it is bound to substitute the present appellant. The question as to whether as between the judgment-debtor and Romesh, the appellant, the decree has been satisfied is a matter that must be enquired into when and after the substitution has been made. But the question as to whether the applicant Romesh should be substituted is a matter that must be first adjudicated on in these proceedings; and if that is so and if it is directed that the substitution should be made, then the question would arise as to whether this decree has or has not been satisfied. The view adopted by the learned Judge apparently without any reason that an uncertified payment can be taken into consideration for the purpose of showing that the decree has been satisfied is dearly opposed to the express terms of Order XXI, Rule 2, Civil Procedure Code, and if the substitution is made of the appellant Romesh, the person Kumud who says that he is the adopted son obviously cannot certify the payment now, which so long has remained uncertified, in order, to defeat Romesh of his rights. It is quite clear that the learned Judge was wrong in giving effect to this uncertified payment.

3. The other point that commended itself to the learned Judge in this case has not bean really attempted to be supported, namely, that under Order II, Rule 2, Civil Procedure Code, Romesh has abandoned this portion of the claim. There is nothing to show that he at the time of the filing of the suit was aware that this decree formed a portion of the estate of Kailash Chunder Saha. It is quite impossible to take the view that Romesh intended to give up any interest he might have in this decree.

4. We, therefore, set aside the judgments of the Courts below and remit the case to the Court of first instance for being properly heard and determined according to the above observations.

5. The respondents to this appeal must pay to the appellant his costs in this Court and also in the Courts below. We assess the hearing fee at two gold mohurs in this Court.


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