KRISHNA BALLAV GHOSH Vs. SASHIMUKHI BOSE

JUDGEMENT

(1.) The decree-holder is the appellant. He obtained a decree on 12th December 1936, against Kadha Prasad Bose, husband of Sashimukhi, the present respondent. The first execution case was No. 823 of 1937. The disputed property was attached on 19th December 1937 along with certain other items. After that attachment, on 8th March 1938, Sri Bhagabat Gosain, through marfatdar, Sashimukhi, advanced a claim, under Order 21, Rule 58, Civil P.C. (claim Case No. 36 of 1938). As the date for sale had been fixed for 19th March 1938, the claim case was dismissed, as filed too late. At this stage, the execution case was transferred to the Court of the Subordinate Judge of Cuttack, on 19th March 1938, where it was numbered as Execution Case No. 88/823. On 16th August 1938, Radha Prasad Bose died. There was no substitution of his legal representative, namely, Sashimukhi, before the sale was held. The decree-holder became the purchaser in the execution sale on 17th August 1938. Sashimukhi put in a-petition for setting aside the sale on the ground that the sale had been held in a proceeding against a dead person, namely, her husband. Eventually the sale was set aside. It is represented to us by Mr. Mukherji that the attachment subsisted and he had to proceed from the stage of publication of sale. While he was proceeding in this manner, an objection to sale was filed on 16th September 1938 by Sashimukhi under Section 47, Civil P.C. On 1st September 1938 the second claim case, being No. 61 of 1939 by Bhagabat Gosain through Sashimukhi, was-advanced but was disallowed on 19th September 1939. We do not know anything as to how the execution proceedings proceeded beyond this stage.

(2.) In the meantime, in execution of another decree (Execution case No. 191/41) that very property was sold and the present appellant became the auction-purchaser on 16th July 1941. He had applied in this execution for rateable distribution of the sale proceeds. His right by purchase was attacked in a suit by Bhagabat Gosain, through Sashimukhi and another as marfatdars. In this suit the present appellant, as auction purchaser, and Sashimukhi, in her personal capacity, were impleaded. The suit ended in a decree in favour of Bhagabat Gosain. The subject-matter of the suit, however, is pending in a second appeal from its decree, in this Court. Till now the appellant has failed in all Courts.

(3.) It is stated that on 14th July 1948, Execution Case No. 88/828 was dismissed with an order-directing the attachment to subsist. I had my doubts with regard to the correctness of the facts stated that go to establish that the Execution case No. 88/823 had been kept pending up till 14th July 1943. Mr. Mukherji insists that it is so. I looked to the petition for execution in Execution case No. 99 of 1944 of the self-same decree. In column 6 of that petition, I find that three other execution cases of the years 1939, 1940 and 1941 have intervened. I do not understand how could, notwithstanding the filing of fresh execution cases, the earlier case No. 88/823 should continue to remain pending.