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The Firm of Ram Prosad Ram Kissen Agarwalla, Ram Prosad Poddar Vs. Haro Kumar Basak and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1926Cal1017,92Ind.Cas.298
AppellantThe Firm of Ram Prosad Ram Kissen Agarwalla, Ram Prosad Poddar
RespondentHaro Kumar Basak and ors.
Excerpt:
civil procedure code (act v of 1908), section 115 - execution of decree--stay proceedings, failure of--decree-holder ordered to take out execution at once--talbana, deposit of--reasonable time for filing processes--execution case, dismissal of, for default--illegal exercise of jurisdiction revision. - .....dismissed with costs, hearing fee three gold mohurs.3. there is however an application by the decree-holder, and we are asked to interfere in revision with the order of the subordinate judge dismissing the execution case for default. the matter stands thus: stay of execution was directed by this court on furnishing security within a specified time. that date expired on the 20th february 1925. the judgment-debtor failed to furnish the required security on that date and the subordinate judge directed the decree-holder to take steps for execution at once. the next order dated the 20th february, proceeds thus: 'the decree-holder has deposited talbana for service of sale proclamation. the processes have not been filed. i reject his prayer for the issue of sale proclamation'. then the.....
Judgment:

B.B. Ghose, J.

1. A preliminary objection has 'been taken as to the competency of this appeal on the ground that the order against which this appeal has been filed is an order of dismissal for default which does not come within the definition of decree under Section 2, Sub-section (2), Clause (d) of the C.P.C. The appeal is not maintainable.

2. The appeal is, therefore, dismissed with costs, hearing fee three gold mohurs.

3. There is however an application by the decree-holder, and we are asked to interfere in revision with the order of the Subordinate Judge dismissing the execution case for default. The matter stands thus: Stay of execution was directed by this Court on furnishing security within a specified time. That date expired on the 20th February 1925. The judgment-debtor failed to furnish the required security on that date and the Subordinate Judge directed the decree-holder to take steps for execution at once. The next order dated the 20th February, proceeds thus: 'The decree-holder has deposited talbana for service of sale proclamation. The processes have not been filed. I reject his prayer for the issue of sale proclamation'. Then the next order of that very date is 'the execution case is dismissed for default'.

4. It seems to us that the Subordinate Judge had exercised his jurisdiction illegally in not allowing the decree-holder reasonable time for filing the processes after he had put in the talbana under the direction of the Court. The 20th February was fixed as the last date on which the judgment-debtor might furnish security for stay of execution and the decree-holder could not have been expected to be ready with the processes in the expectation that the judgment-debtor would fail to furnish the required security, In such circumstances, the Subordinate Judge ought, in the proper exercise of his jurisdiction, to have given the decree-holder reasonable time for furnishing the processes.

5. The order of the Subordinate Judge dated the 20th February 1925 dismissing the case for default is, therefore, set aside and the case is remanded to him for allowing the decree-holder to take further steps for the execution of his decree. The petitioner will be entitled to his costs of this application, hearing-fee three gold mohurs.

Ewart Greaves, J.

6. I agree.


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