SHYAM SUNDAR BEHURA Vs. BASANTA SAMAL

JUDGEMENT

(1.) TITLE Suit No. 5/55 was instituted for ejectment of three defendants. The defendants were Padan, father of respondents 1 and 2; Dharama, respondent no. 3 and one Madan Samal. On 7-2-56 the suit was dismissed but TITLE Appeal No. 50/56 carried against the original decree was allowed on 1-4-59. A second appeal (Second Appeal No. 257/59) was dismissed in this Court. Thus the decree in the title appeal was maintained.

(2.) TITLE Suit No. 56/61 was instituted by Padan, Dharama and Suma Bewa, respondent no. 4, for declaration that the decree in the TITLE Appeal No. 50/56 was a nullity on account of the fact that though Madan had died, his legal representatives had not been substituted. In the suit, the Court came to find that Madan died on 3-5-57 and Madan died heirless. Suma, the present respondent no. 4 was not his widow. He thus found that there was no abatement of the TITLE Appeal and the decree in that appeal was not a nullity. The suit was accordingly dismissed. The Appeal No. 253 of 1965 carried against the decree in the second suit was dismissed on 30-3-66. Second Appeal No. 299/66 instituted in this Court against the appellate decree was dismissed on 3-2-67.

(3.) IN the case of Lakshan Chandra Naskar v. Ramdas Mondal, 33 Cal WN 795 : (AIR 1929 Cal 374) (FB) Rankin, C. J. delivering the judgment of the Full Bench of five learned Judges has laid down:" A question between plaintiff and defendant as to whether the decree has been satisfied or is a decree of which the plaintiff is entitled to have execution is clearly one of a class of questions which "shall be determined by the Court executing the decree." This does not mean merely that the execution Court must determine it if it is raised in the course of the execution proceedings. It means that the Court executing the decree is given exclusive jurisdiction over this matter as being one which relates to the execution. The words "and not by a separate suit" show clearly that the section is forbidding for this purpose the use of the ordinary means whereby rights are determined. This is on my reading of the section an express negative to carry out and make clear the purpose of the section in pointing to a particular Court as the proper Court."