BHUBAN CHANDRA SADHUKHAN Vs. BISWANATH DEY

JUDGEMENT

(1.) This is a second appeal arising out of an objection under Section 47 of the Code of Civil Procedure and is on behalf of the judgment-debtor. The objection of the Judgment-debtor was that the notarial bond, grosses cony of which was obtained on 30th January, 1952, is not directly executable. The answer of the decree-holder is that it is so executable and the judgment-debtor not having taken the objection in question in an earlier objection under Section 47 of the Code cannot now raise the objection and it is barred by the doctrine of constructive res judicata. The Munsiff held that it was not necessary for him to go into the merits of the objection but he held that this objection was barred by the principle of constructive res judicata. Against that there was an appeal. The Subordinate Judge held that the previous miscellaneous case No. 54/58 was dismissed for default for non-appearance of both Parties on the date of heaing. The learned Judge held that under Order 9, Rule 4 of the Code, if a suit was dismissed for default of both the Parties, there would be no bar to subsequent suit. The learned Subordinate Judge thereafter considered the merits of the objection and came to the conclusion that this objection had no force and the 'grosses copy' could be executed.

(2.) This second appeal, as stated above, has been filed by the judgment-debtor and as the question of res judicata was held in his favour, Mr. Chandra has referred only to the merits of the case. According to him, as the bond was subsequent to 1st of May, 1950. the grosses copy was not executable as such and only right is a right by suit. Mr. Chandra has referred to a recent decision or Sen and N. K. Sen, JJ., reported in 64 Cal WN 539, between Tulshi Charan Surul v. Kangali Charan Dey. It is indeed true there is an opinion of their Lordships that "the grosses copies of notarial mortgage deed delivered between May 2, 1950, and October 2, 1954, would only have the force of certified copies of the mortgage bonds, but would not be executable as decrees," This opinion of their Lordships was directly in conflict with the opinion expressed by, another Division Bench in Sourindra Kumar Saha v. Bibhuti Roy reported in 63 Cal WN 961--a decision of Cuba and Banerji, JJ. Considering the latter decision aforesaid their Lordships (Sen and N, K. Sen, JJ.) observed. "It is not necessary for us, however, to make a reference to a larger Bench for a decision o the question, because in the present case we are concerned with a grosses copy of notarial mortgage bond which was executed on 5th December, 1947, and delivered on 25th February, 1948.

(3.) Thus their Lordships' opinion in the matter is an 'obiter' and a direct decision of the Division Bench is still there and holds the field. But the opinion of their Lordships though not binding has very great persuasive value and the learned Advocate for the appellant rightly stated--whether obiter or not, he adopted the reasons for that opinion as a part of his argument, I would, therefore, make an attempt to consider this case in my humble way.