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Calcutta High Court
Naida Basmi Majhi And Ors. vs Rajendra Chandra Mala And Ors. on 10 September, 1928
Equivalent citations: 115 Ind Cas 353
Author: B Ghose
Bench: B Ghose, Bose


B.B. Ghose, J.

1. This is an appeal on behalf of the defendants against the order of the District Judge reversing the decision of the Subordinate Judge and remanding the case for trial on the merits. The plaintiffs brought the suit for declaration of their title to a certain property. The defendants had obtained a decree against their father Bhairab Mal with regard to this very property and after the death of Bhairab executed that decree as against the plaintiffs on the ground that the plaintiffs obtained the property as the legal representatives of their father. In execution of the decree the defendants obtained possession of the property in suit as against the plaintiffs. The plaintiffs now bring this suit for declaration of their title to the property as against the defendants on the allegation that the property did not belong to their father and they never took possession of the property as the legal representatives of their lather, but that they inherited the property from their maternal grandfather one Maniram Bhakta and were entitled to possession in their independent right and not through their father. The Subordinate Judge held that this is a matter which the plaintiffs ought to have urged in the execution proceedings, as a matter falling under Section 47, Civil Procedure Code. In that view he held that the present suit was barred as the suit could not be considered under the circumstances of this case as a proceeding under Section 47(2), Civil Procedure Code. In that view he dismissed the suit. On appeal the learned District Judge held that the matter did not fall within Section 47, Civil Procedure Code, as the plaintiffs really wanted to attack the decree that was passed against their father Bhairab Mal and that could only be done by a separate suit and not under Section 47, Civil Procedure Code, in execution of the decree. As a matter of fact the plaintiffs did not attack the decree itself and the decree as against Bhairab was good as it was made. The reason why the learned District Judge has held that the plaintiffs wanted to go behind the decree was this, that Bhairab in the previous litigation claimed to have purchased this property from the widow of Maniram’s brother Becharam, This title he failed to substantiate and the defendants succeeded in obtaining a decree against Bhairab with regard to this property. Now in this suit the plaintiffs want to allege that the property did not originally belong to Becharam but to Maniram their maternal grandfather thereby attacking the reasoning of the Court in making the decree as against Bhairab in the previous suit. This is not going against the decree of the Court as made against Bhairab.

2. The question, therefore, remains whether the plaintiffs could have taken the plea under Section 47, Civil Procedure Code, that the disputed property which was in their hands and of which the defendants desired to take possession in execution of the decree against their father was the plaintiffs’ own property derived through their maternal grandfather and not obtained through their father. The question appears to me to have bean settled by the Full Bench case of Punchanun Bundopadhya v. Rabia Bibi 17 C. 711.(F.B.). The Subordinate Judge was correctly referred to the principle when he says: ‘When the judgment debtor or the representative impleaded in the execution proceedings claims a right in the property on his own behalf though under different right Section 47 applies but when he claims it as the property of another person on behalf of that other person Order XXI, Rule 58 applies.” The statement, in the latter part of the judgment is supported by the Full Bench case of Kartick Chandra Ghosh v. Ashutosh Dhara 12 Ind. Cas. 168 : 39 C. 298 : 14 C.L.J. 425 : 16 C.W.N. 26 which is a case converse to that of Punchanun Bandopadhya v. Rabia Bibi 17 C. 711.(F.B.). Upon this principle the present suit is not maintainable. We have gone through the plaint in order to discover whether the plaintiffs desired to set aside the original decree on any ground of fraud But there is no such allegation. The plaintiffs only asserted their own independent title derived from their maternal grandfather. Under the circumstances, in my judgment, the Subordinate Judge was right in his conclusion and the appeal is, therefore, allowed. The order of the District Judge is set aside and the decree of the Subordinate Judge restored with costs in this Court as well as in the lower Appellate Court. The hearing-fee is assessed at five gold mohurs.

Bose, J.

2. I agree.

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