Halodhar Shaha And Ors. vs Harogobind Das Koiburto And Anr. on 4 June, 1885

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Calcutta High Court
Halodhar Shaha And Ors. vs Harogobind Das Koiburto And Anr. on 4 June, 1885
Equivalent citations: (1885) ILR 12 Cal 105
Author: Field
Bench: Field, O’Kinealy


Field, J.

1. The facts of the case are some what complicated, hut the real question which we have to decide upon this appeal is a sufficiently simple one. Defendants Nos. 1 to 3 and 4 to 6 jointly obtained four rent decrees against Halodhar, Monmohini and others. The interest of defendants 1 to 3 was that of 6 annas, and that of 4 to 6 was ten annas. Rashoraj Shaha, plaintiff No. 1, in the present case, purchased the ten annas interest in the decrees of defendants Nos. 4 to 6, and he applied, under the provisions of Section 232 of the Civil Procedure Code, to have his name put upon the record, and to execute the decree. That application was refused under the provisions of Clause (b). Section 232, it being found that Rashoraj was merely a banami purchaser on behalf of Halodhar and Monmohini, two of the judgment-debtors under the decree. Subsequently defendant No. 1, or defendants Nos. 1 to 3, as has been otherwise stated, obtained a money-decree, on the 6th March 1878, against defendants Nos. 4 to 6, that is, the owners of the ten annas interest; and in execution of that money-decree defendant No. 1 or defendants Nos. 1 to 3 brought to sale and himself or themselves purchased the ten annas interest in the rent-decrees belonging to defendants Nos. 4 to 6. Thereupon the defendant No. 1 executed the rent-decree and realized the amount due thereunder. Halodhar and Monmohini having had to pay some Rs. 1,500 odd, the present suit is instituted by Halodhar, Monmohini, Rashoraj, a benami purchaser, and other persons said to have an interest, in order to recover the sum of Rs. 1,500 odd, which was thus realized from Halodhar and Monmohini. The Subordinate Judge has held that the suit is not maintainable, being barred by the decision of the question under Section 232; and that it was barred by reason of the provisions of Clause (c) of Section 244 of the Code of Civil Procedure. What is now to be decided is, whether the question determined in the proceeding under Section 232 was decided between the parties to the suit, or their representatives. Obviously it was not decided between the parties to the suit, because Rashoraj was no party; and we think also that it is impossible to say that the question was decided between the representatives of the parties to the suit. Rashoraj had, indeed, purchased the interest of the ten annas decree-holders, but inasmuch as his application under Section 232 of the Code of Civil Procedure was refused, and his name not put upon the record, we think it impossible to say that he ever became a representative of any. party to the suit, within the meaning of Clause (c) of Section 244. We think, therefore, that the Subordinate Judge was in error in holding that the present suit is barred by the former proceeding.

2. We, therefore, reverse the decree of the lower Appellate Court, and remand the case to him for trial upon the merits.

3. Costs to abide the result.

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