BABULAL B MARWARI Vs. NAHARMAL KALYANI

JUDGEMENT

(1.) IN these two appeals the common questions are whether the application filed on 9th April, 1962 by the decree holder respondent for execution of the decree dated 15th March, 1949 passed by this Court in its Ordinary Original Jurisdiction was barred by limitation and whether the execution came was maintainable against the present appellants.

(2.) ON 15th March, 1949 a learned Single judge of this Court had decreed Suit no. 174 of 1947 brought by Maharmal kalyani against Radhakrishan Babulal described as a firm carrying business at village Samsi, district Malda for a sum of Rs. 9136. 50p. with interest at the rate of 6% per annum. On the prayer of the decree-holder the said decree was previously transferred to Dumka for execution. Thereafter the decree was transferred to the subordinate Judge's Court Malda for execution and the same was registered as money Execution Case No. 5 of 1955. Gangaram, Harising, Kadar and Hariram had filed an objection under Order 21 rule 58 of the Code against attachment of certain properties made in the said money Execution Case No. 5 of 1955. The said claim was registered as a miscellaneous case. On 22hd 1957 the learned subordinate Judge, Malda had allowed the said claim case and had released the attached properties. On 8th July, 15 (57 the Money Execution Case No. 5 of 1955 was dismissed for default.

(3.) THEREUPON, the decree-holder had filed under Order 21 Rule 63 of the Code o. C. Suit No. 35 of 1958 in the subordinate Judge's Court Malda against the judgment' debtors and the said claimants inter-alia for a declaration that the said order in the claim case was erroneous and was liable to be set aside upon the finding that the defendant no. 6 had 16 annas in title and possession in the properties described in the Schedule 'ka' to the plaint. The said suit was subsequently re-numbered as P. C. Suit No. 114 of 1960 of the Additional Subordinate Judge's Court, Malda. On the joint application made on behalf of the plaintiff and the defendants, the case was referred to arbitration by three persons. The learned Arbitrators thereafter filed their Award by which they decided that since before the plaintiffs got the decree at the time of the decree the defendants had been living in joint mess and they had been enjoying the attached properties in ejmali. The learned Arbitrators further decided that the attached properties were judgment-debtors' ejmali properties and the same were liable for the plaintiff's decretal dues. On 20th June, 1961 the learned Subordinate Judge, malda had decreed the said claim suit: (again re-numbered as O. C Suit No. 35 of 1958) in terms of the said award which was directed to form part of the decree.