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Sheikh KapiluddIn Ahmad and ors. Vs. Sheikh KamaruddIn Ahmad and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in5Ind.Cas.148
AppellantSheikh KapiluddIn Ahmad and ors.
RespondentSheikh KamaruddIn Ahmad and ors.
Cases ReferredNilratan Khasnobish v. Ram Rutton Chatterji
Excerpt:
execution of decree - decree admitted to be fully satisfied--application for further execution not admissible--proper course for decree-holder is review. - .....the application, was returned to be revised and corrected and that, in spite of this, the decree-holders allowed the sale notification to go out stating that the sum mentioned in, the application, namely, rs. 2790-11, was all that was due as the balance of the claim, in addition, to interest and costs up to the data of sale. before the amount was paid in, an account was taken in the office of the court and it was ascertained that the sum of rs. 3,541-13-9 was due the judgment-debtors, in satisfaction of that claim, paid in the total amount and the decree-holders' pleader, on that payment, admitted full satisfaction of the decree, and full satisfaction was entered by the court. the learned pleader for the appellants has contended that, after what had occurred, the lower court.....
Judgment:

1. The only question raised in this appeal is whether the District Judge was right in allowing the decree-holders to put in an application for further execution of their decree after, in execution of a previous application, the full amount stated in thatapplication had been paid and the decree admitted to be fully satisfied and so entered by an order of the Court. The learned Judge has held that such an application can be allowed and he has relied on the case of Nilratan Khasnobish v. Ram Rutton Chatterji 5 C.W.N. 627 in support of that view. It is contended by the learned pleader for the appellant that the District Judge was Wrong in allowing the petitioners to re-open the execution after it had. once been declared to be finally closed. The learned pleader has pointed out that the application for execution which stated the amount due on the decree Was verified by the petitioners that even after it had been put in, their attention was drawn to the decretal amount as stated therein which was sought to be recovered, that, in fact,, on two Occasions, the application, was returned to be revised and corrected and that, in spite of this, the decree-holders allowed the sale notification to go out stating that the sum mentioned in, the application, namely, Rs. 2790-11, was all that was due as the balance of the claim, in addition, to interest and costs up to the data of sale. Before the amount was paid in, an account was taken in the Office of the Court and it was ascertained that the sum Of Rs. 3,541-13-9 was due The judgment-debtors, in satisfaction Of that claim, paid in the total amount and the decree-holders' pleader, on that payment, admitted full satisfaction of the decree, and full satisfaction was entered by the Court. The learned pleader for the appellants has contended that, after what had occurred, the lower Court erred in allowing the present opposite party respondents to re-open the matter. We have gone through the Orders passed on the application and we find that there was some adjustment between the parties and we also find that there was an order on a petition of the judgment-debtors, that a previous payment of Rs. 1,103 made in Jaist 1313 was to be credited with interest. The amount was credited but apparently not the interest. It is impossible to say what was the reason which led the decree-holders, to put in the application, as framed, but we think that a full opportunity was given to them to amend their application and to see that it was correct. The District Judge certainly ought to have considered this before allowing the present application to succeed.. Moreover, it appear that the order of the Court directing that full satisfaction of the decree to be entered remains standing and it seems to us that the proper course, if there had been any mistake, would have been for, the decree-holders to come in under section, 623, Civil Procedure Code, for a review. On behalf of the decree-holders, it has been argued that in, the case of Nilratan khasnobisk v. Ram Rutton Chatterji 5 C.W.N. 627 the learned Judges held, that, a correction, could be made on an application under, Section 244, Civil Procedure Code. But the facts of that case are quite different. In that case bath parties appeared and admitted satisfaction where as in the present case, the, judgment debtors paid in the full decretal amount and, on that payment, the representative of the decree-holders admitted satisfaction. We think that, in the special circumstances of the case, the decree-holders failed to make out a sufficient cause for re-opening the execution of the decree and we are of opinion that their, application has been wrongly allowed. The result, therefore, is that we set aside, the judgment, and order of the lower Court and decree this appeal with costs. We assess the hearing fee in this Court at two gold mohurs.


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