KUNDALATA BISWAS Vs. CHANDRA KAMINI DASI

JUDGEMENT

(1.) This is an appeal from a decision of the District Judge, Murshidabad, dated 16-6-1951, reversing a decision of the Subordinate Judge, Murshi-dabad, dated 31-8-1950.

(2.) The matter arises in this way: One Hindu Bashini Biswas and Kiran Bala Biswas purchased the properties which are mentioned in schedule Ka to the plaint filed in the suit out of which this appeal arises. Kiran Bala Biswas purchased the properties mentioned in schedule Kha in a rent execution case being Case No. 51 of 1950 on 28-4-1910. Kiran Bala's husband was one Ashutosh. He had a son by Kiran Bala named Sachinandan and two daughters named Kundalata and Kanak-lata. After the death of Kiran Bala, the said Ashutosh married again and got a son by his second marriage named Nitai. The said Nitai has not been heard of, for a long time but his wife's name is Binapani and he has a son by the name of Amalendra. After the death of Kiran Bala, her property was inherited by Sachinandan and her two daughters Kundalata and Kanaklata and on Sachinanda's death his share in the properties inherited by him from Kiran Bala went to Ashutosh. Ashutosh executed a mortgage, of the properties mentioned in the Kha schedule on behalf of himself and his minor children Kundalata and Kanaklata. After Ashutosh's death the mortgagee instituted a suit against his heirs namely Nitai and also against Kundalata and Kanaklata. The said suit was decreed against Nimai and dismissed against Kundalata and Kanaklata, the court having held that the minors are not bound by the said mortgage. In execution of this decree, Kundalata was dispossessed of her properties although the suit against her was dismissed. Thereupon she filed an application under Order 21, Rule 100, Civil P. C. for being restored to possession. The said application was successful in part that is, in respect of some of, the properties belonging to Kundalata, but the properties which were the subject matter of the Ka schedule and Kha Schedule were not restored to her. Thereupon the said Kundalata filed the Present suit under the provisions of Order 21, Rule 103 of the Code. In the said suit she complained of her dispossession not only with respect to Kha sche- dule property but also with respect to the Ka schedule properties. Both the courts found that she had title to the extent of l/3rd share in Ka schedule properties and 2/3rd share in Kha schedule properties. The trial court decreed the suit in her favour. Against that decision, there was an appeal and the lower appellate court reversed the decree on the ground that the application which she made under Order 21, Rule 100 of the Code was really an application under Section 47 of, the Code and that being so, the only remedy that was left open to the said Kundalata was to prefer an appeal against the said order and no suit would lie in respect of the same. The said court inter alia observed as follows:

(3.) Mr. Mitter appearing on behalf of the appellant contended before us that the view taken by the lower appellate court was entirely wrong. He further contended that his client was entitled to make an application under Order 21, Rule 100 of the Code, she not being a judgment-debtor and if tnat be so, then she is also entitled to file a suit under Order 31, Rule 103 of the Code to establish her right, which she claims, to the present possession of the property but which has not been given to her in the application made under Order 21, Rule 100 of the Code.