CHANDRADIP PROSAD Vs. JAGANNATH AGARWALLA

JUDGEMENT

(1.) This is an appeal by an objector whose objection under Section 47 of the Civil P. C. has been dismissed by the learned Subordinate Judge, Darjeelins by his order dated February 28, 1967 passed in Misc. Case No. 52 of 1966. The said misc. case arose out of an execution case being Order C. Execution Case No. 21 of 1960.

(2.) The respondent obtained a mortgage decree by consent against a joint mitakshara family represented by the then karta thereof namely Ramrup Mistry and put the same decree into execution in the aforesaid O. C. Execution Case No. 21/60. Pending the execution, Ramrup Mistry died and the present appellant was brought on the record as the succeeding karta of the joint family. There is no dispute that the appellant is the eldest son of the deceased Ramrup Mistry and being himself one of the coparceners was the eldest male member of the family.

(3.) The appellant filed an objection under Section 47 of the Code raising a plea that he is not the karta of the joint family, that he alone cannot represent either the family or the other coparceners and hence the execution case cannot proceed against him as the karta of joint family and unless the other heirs and legal representatives are brought on record, the execution case should be dismissed.