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Musammat Manik And Ors. vs Ranjas Agarwala And Ors. on 30 October, 1922

Patna High Court
Musammat Manik And Ors. vs Ranjas Agarwala And Ors. on 30 October, 1922
Equivalent citations: 70 Ind Cas 332
Author: J Prasad
Bench: J Prasad


ORDER

Jwala Prasad, J.

1. The question referred for decision is whether the ruling in phul Kumari v. Ghanshyam Misra 35 C. 202 : 7 C.L.J. 36 : 12 C.W.N. 169 : 10 Bom. L.R.I : 5 A.L.J. 10 : 17 M.L.J. 618 : 2 M.L.T. 506 : 14 Bur. L.R. 41 : 35 I.A. 22 (P.C). Holds good for a case in which lie property m f dispute has not only been attached but also sold before the suit has been brought. I would answer the question in the affirmative.

2. Lord Robertson, in delivering the judgment of the Judicial Committee, observed, that for the right determination of the question at issue the object and nature of the suit has to be ascertained, and his Lordship looked upon the cause of action stated by the plaintiff as the test for determination of the nature and the scope of the suit. In that case, as in the present, the cause of action was stated to be the date of the judgment pronounced by the Court in the claim lodged by the plaintiff under the Code of Civil Procedure (Order XXI, Rule 58). The plaintiff in the present case was apparently aggrieved by the order of the Court dismissing her claim to the property in dispute and distinctly averred that the cause of action arose on the date her claim, was disallowed, the 19th of February 1921. Her obvious intention in bringing the action was to have the said order of the Court, rejecting her claim, set aside. Such a right has been expressly conferred upon the plaintiff by Order XXI, Rule 63 of the Code. The fact that the property was actually sold two days later, that is, on the 21st February, but before the suit was brought, does not affect the nature and scope of the suit. The plaintiff claims to be in possession of the property and does not ask for her being restored or the possession being delivered to her, as in the case of Chandradhari Singh v. Tipan Prasad Singh 43 Ind. Cas. 971 decided by the late Taxing Judge, Mr. Justice Roe. Nor does the decision of Mookerji, J. in the case of Krishna Das Laha v. Hari Charan Banerjee 10 Ind. Cas 865 14 C.L.J. 47 at 491 15 C.W.N. 823 apply to the facts other present case. It is difficult to distinguish the present case from the case of Phul Kuman v. Ghanshyam Misra 35 C. 202 : 7 C.I.J. 36 : 12 C.W.N. 169 : 10 Bom. L.R. 1 : 5 A.L.J. 10 17 M.L.J. 618 : 2 M.L.T. 506 : 14 Bur. L.R. 41 : 35 I.A. 22 (P.C) and to take it out of purview of the decision of their Lordships of the Judicial Committee. To my mind the case c early comes under the first head of Article 17, Schedule II of tie Court-Fees Act and the Court-fee payable id Rs. 10, The plaintiff, however, under valued the property and the valuation as estimated by the Stamp Reporter is accepted to be correct.

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