Gopee Nath Acharje vs Achcha Bibee on 5 July, 1881

Calcutta High Court
Gopee Nath Acharje vs Achcha Bibee on 5 July, 1881
Equivalent citations: (1881) ILR 7 Cal 553
Author: Prinsep
Bench: Prinsep, Field


Prinsep, J.

1. Both the lower Courts have given the plaintiff a decree; and we are of opinion that this decree is correct. We do not concur in much that the Subordinate Judge has said in his judgment on the question of equity; and much of the law quoted by the Subordinate Judge has no application to a case of this kind. It may be proper to observe also that Section 295 of the Code of Civil Procedure has no application to a case of this kind That section applies only where the decree-holders have all applied to the same Court for execution of their decrees. Now, in this case, the plaintiff did not apply to the Small Cause Court Judge for execution’ of her decree, seeing that that decree was a decree of the Munsif, and had never been transferred into the Small Cause Court for execution. Then, with reference to Section 272, we think that the Subordinate Judge has taken a proper view of the proviso, which is merely intended to mean that any.’ question of title or priority is to be determined by the Court in which, or in the custody of which, the property is, and not by the Court which made the order of attachment. We think that so long as the order of attachment was in force, and no further order was made, the Small Cause Court Judge would have had jurisdiction to deal with the question of title or priority between the decree-holders; but we think that, after the further order of the 25th January was made, ha had no jurisdiction to deal with this question, seeing that the result of that order was to transfer to the plaintiff the amount in deposit; in other words, that the effect of this order was to vest in the plaintiff the property in this money and take it out of the disposal of the Small Cause Court Judge. After that order had been carried out, the judgment-debtor, Gaida Bibee, ceased to have any interest in the money which could be attached by the defendant in execution of his decree. Whether an order made by the Court under the proviso of Section 272 was intended by the Legislature to be a final order, a matter which we do not think it necessary to decide in the present case. It is sufficient for us to say that, under the particular circumstances of this case, the Small Cause Court Judge had no jurisdiction to proceed under the section at the time when be so proceeded. The decision of the lower Appellate Court will be confirmed.

Leave a Reply

Your email address will not be published. Required fields are marked *

You may use these HTML tags and attributes:

<a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <s> <strike> <strong>

* Copy This Password *

* Type Or Paste Password Here *