Kissory Lal Chowdhury vs Raja Sewbux Bogla on 5 April, 1909

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Calcutta High Court
Kissory Lal Chowdhury vs Raja Sewbux Bogla on 5 April, 1909
Equivalent citations: 3 Ind Cas 999
Author: Harington
Bench: Harington


Harington, A.C.J.

1. The applicant desires the widow and executrix of the deceased defendant to be placed on the record of representing the deceased. The application is resisted on the ground that there is no pending suit-a decree having been made by consent of parties-and further the learned Counsel who opposes contends that the decree cannot be executed and that the parties are bound to have recourse to a suit to enforce his rights.

2. It appears from the petition that, by the consent of the defendant, it was ordered that the suit should be withdrawn against the first defendant and that as against the other defendants the terms should be carried out and the property sold in case of default. One of the terms provided for a payment of Rs. 2,000 by the defendant whoop-poses this application to the plaintiff-applicant within 3 weeks of the date of the consent-decree and there is a provision that the same should be declared a charge on certain property mentioned in the decree and in case of default the said property should be sold for the realisation of the said money.

3. If the consent-decree had not contained a direction that the property charged should be sold for non-payment this application would have failed on the authority of Abhoyessury Dabee v. Gouri Sankur Panday 22 C. 859. Had that decree fallen short of declaring that sale should take place under certain contingencies, it is clear that a separate suit should have been necessary.

4. The case of Bhugwan Das Khettry v. Nilkanta Ganguli 9 C.W.N. 171 is an authority for the proposition that a mortgage suit may be a pending suit even after order absolute.

5. Here the parties have agreed to a decree which is like a mortgage-decree that the properties are to be sold upon non-payment within a specified time. I see no distinction, in principle, between this decree and the usual mortgage decree.

6. The learned Counsel for the Opposite Party referred to Prosonnomoye Dabee x. Raj Lulchy Dabee (Unreported) Suit No. 207 1/2 of 1902 decided on 10th August 1905 pel Sale, J.

7. That was a partition suit in which certain property was declared to be a charge and the decree went on to say that in the event of non-payment the sum was to be realised in execution. He relied on that decree as being analogous. That decree while it declared a charge on one place did not declare that the property should be sold but that the money should be realised in execution that is in a different way from that of the ordinary mortgage.

8. As regards the point taken by the Opposite Party that no liberty to apply in the consent-decree had been taken I do not think that stands as a bar. Where an order is not final, liberty to apply should be implied.

9. I have come to the conclusion, on the authority of the case in Bhugwan Dats Khettry v. Nilkanta Ganguli 9 C.W.N. 171 that the decree made in the present suit is not a final decree. The applicant would have to apply for an order for enforcing that portion of the decree which directs the sale. I think the suit is a pending one and the order for substitution is made accordingly.

10. Application granted with costs. Certified for counsel.

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