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Calcutta High Court
Gahar Khalipa Bipari And Anr. vs Kasi Muddi Jamadar on 24 November, 1899
Equivalent citations: (1900) ILR 27 Cal 415
Author: Maclean
Bench: F W Banerjee, Harington


Maclean, C.J.

1. The learned Judge in the Court below has stated with accuracy what the question in this case is. First, he says, the question is, whether as between the decree-holder and judgment-debtor, the question of the saleability, or otherwise, of an occupancy holding can be determined in the execution stage under Section 244 of the Code of Civil Procedure, and his conclusion is–it is stated at the end of his judgment–that “the point now under discussion could not be raised by the appellant tenant; or in other words, the question did not properly arise.” I have the misfortune to differ from the learned Judge. It seems to me clearly a question arising between the parties to the suit, a question arising between the decree-holder and the judgment-debtor in the suit, in which the decree was passed and relating to the execution of the decree. This view is consistent with that held by this Court in the cases of Durga Charan Mandal v. Kali Prasanna Sarhar (1899) I.L.R., 26 Cal., 727; Bhiram Ali Shaik Shikdar v. Gopi Kanth Shaha (1897) I.L.R., 24 Cal., 355. The appeal must be allowed, and the case remitted to the lower Court for retrial with this intimation of our opinion. We assess the hearing fee at two gold mohurs; the costs to abide the result of the remand.

Banerjee, J.

2. I concur.

Harrington, J.

3. I Concur.

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