LAWS(CAL)-1955-8-6

NARESH CHANDRA BOSE Vs. SACHINDRA NATH DEB

Decided On August 19, 1955
NARESH CHANDRA BOSE Appellant
V/S
SACHINDRA NATH DEB Respondents

JUDGEMENT

(1.) This is an appeal on behalf of the judgment-debtor from an order dismissing his application under Section 47, Civil P. C. objecting to the execution of a decree obtained by the respondents against him as far back as 4-4-1938, for arrears of putni rent in a court of Jessore, now in East Pakistan. The decree was transmitted by the Jessore Court to an Alipore Court on 31-10-1946, and on 1-3-1947, the decree-holders applied for execution there against certain properties of the judgment-debtor in Calcutta. The first objection under Section 47, Civil P. C. was filed on 3-4-1947, and the decree-holders supplied for the appointment of a receiver in respect of the properties against which they wanted to proceed in execution. On 24-5-1947, the objection of the appellant to the execution, was dismissed and the petition for appointment of a receiver was allowed and the judgment-debtor himself was selected for such appointment. But as he neither took out the writ nor intimated his willingness to act as receiver, a lawyer was selected in his place for appointment as receiver on 14-7-1947. The actual order of appointment, however, on the acceptance of a security bond furnished by the Receiver as directed by the court was not issued till 16-3-1953. The objection out of which this appeal arises was filed on 18-4-1953, an objection on the same grounds had been filed earlier on 10-1-1953 and both were taken up together and dismissed by am order dated 19-6-1953. This is the order now appealed from.

(2.) On 3-4-1947, the judgment-debtor had filed an application under Section 47, Civil P. C. on the ground that the execution against properties other than the defaulting tenure was barred under Section 168A, Bengal Tenancy Act. That was dismissed up to the Supreme Court, the judgment of the Supreme Court being dated 24-4-1952.

(3.) The only point argued by Mr. Sen on behalf of the appellant is that the Alipore Court has no longer any jurisdiction to proceed with the execution of a decree passed by a court which has become a foreign court since 15-8-1947 the Indian Independence Act of 1847 and its offshoot the Indian Independence (Legal Proceedings) Order, 1947, under which the Alipore Court acquired jurisdiction having both ceased to be law in the Indian Republic, the first by reason of its repeal under Article 395 of the Constitution and the second because of a variety of reasons assigned by Mr. Sen and to be examined by me as I proceed.