MST ANAR BAI Vs. MURALIDHAR MODI

JUDGEMENT

(1.) The two aforesaid appeals are by two sets of judgment-debtors in an execution proceeding and are from the same order dated 18-3-1974 passed in Misc. Case No. 213 of 1972 in Execution Case No. 193 of 1971 by which their application under Section 47, Civil Procedure Code was rejected. Judgment- debtors 1 to 19 who are the legal representatives of defendant No. 2, and defendant No. 3, who is judgment-debtor No. 20, in the said execution proceeding are the appellants in M. A, No. 68 of 1974 Judgment-debtors Nos. 21 to 27 who are the legal representatives of defendant No. 1 in the same execution proceeding are the appellants in M. A. 70 of 1974.

(2.) To understand the nature of the objections raised by the judgment-debtors in the execution proceeding, it is necessary to narrate some background facts The plaintiff-decree-holder filed Title Suit No. 42 of 1957 for specific performance of contract. Late Nikunja Kishore Das the original owner of the property was im- pleaded as defendant No. 1 and his transferees Gulab Ray and Madumal were impleaded as defendants 2 and 3. This suit was decreed on 306- 1961 with costs assessed at Rs. 3,589.87 p. The defendants 2 and 3 came up in appeal to this Court in First Appeal No. 60 of 1961. By judgment dated 2412- 1963 the First Appeal was allowed, the plaintiff's suit was dismissed and the suit was remanded to the trial court for fresh hearing on the additional issue as to whether defendant No. 1 was liable to pay damages. The High Court awarded costs of the appeal as well as of the trial court in favour of defendants 2 and 3 against the plaintiff. The cost computed as payable to those defendants against the plaintiff in the trial court decree was Rs. 1,098.25 and costs awarded against the plaintiff in the High Court decree was Rs. 5,219.94. Defendants Nos. 2 and 3 levied execution for costs awarded in the High Court decree in Execution Case No. 14 of 1964. The aggregate amount of costs both in the High Court and in the trial court (Rupees 6,318.19 p.) together with cost of execution amounting to Rs. 6,447.09 p. was paid by the plaintiff in this execution case on 35-4-1965.

(3.) Three appeals were preferred to the Supreme Court, one by the plaintiff, second by defendants Nos. 2 and 3 and the third by defendant No. 1. Plaintiff's appeal was numbered as Civil Appeal No. 1050 of 1965, the appeal by Defendants Nos. 2 and 3 was numbered as Civil Appeal No. 1051 of 1965 and the appeal by defendant No. 1 was numbered as Civil Appeal No. 1052 of 1965. All the three appeals were heard by the Supreme Court and disposed of by judgment dated 10-9-1968. The operative portion of the judgment is extracted hereinbelow:-