ARAKHIT PADHAN Vs. ISWAR CHANDRA MISRA

JUDGEMENT

(1.) THE judgment-debtors are the appellants. Iswar Chandra Misra and Padma dibya, brother's widow of the former, obtained a joint decree against the appellants and others in Title Suit No. 18 of 1946-47 in the Court of the Munsif, nayagarh. Iswar also filed Execution case No. 74 of 1956 without mentioning in the execution application that it was for the benefit of both the decree-holders. The judgment-debtors filed an objection under Section 47, Civil Procedure Code that the execution application was not maintainable as it was not in conformity with Order 21, Rule 15 Civil Procedure Code. The executing Court overruled this objection. In Misc. Appeal No. 16 of 1958, the learned Subordinate Judge, Puri passed the following order :-

(2.) THE findings of fact that Padma Dibya is a member of the undivided Hindu mitakshara joint family consisting of Iswar and herself and that the execution case had been filed for the benefit of both the decree-holders have not been rightly assailed in second appeal. Mr. Mohapatra raised the following contentions : -

(3.) MR. Asok Das raised a preliminary objection that the judgment-debtors not having gone up against the remand order cannot assail it in this appeal.