NAIMUDDIN SHEIKH Vs. JANATULLA MONDAL AND ORS

JUDGEMENT

(1.) This rule was obtained by the decree-holder against an order of the learned Subordinate Judge, Dhubri, dated 4-4-1959 whereby he set aside the order of the learned Munsif dated 5-4-1958.

(2.) The facts shortly put are that while the Petitioner sought to execute a decree in Title Execution Case No. 14 of 1949, the judgment-debtor raised an objection that the decree-holder No. 1 had already sold away his interest in the suit land to two persons, namely, Rahimuddin and Mahimuddin, and divested himself of any interest in the land, and therefore, he was estopped from executing the decree since he had no right in the suit property left at the moment. The learned Munsif by his order dated 10-2-1958 accepted this contention raised by the judgment-debtors and held that the decree-holder No. 1 had no more got any right to execute the decree by taking khas possession of the land, and, accordingly the objection was allowed.

(3.) Objection has been taken as to want of jurisdiction of the appellate court mainly on two grounds -- firstly, that under Order 47 Rule 7 Code of Civil Procedure, the appellate court could not have interfered with the order passed in review in the circumstances of the case and secondly that in any event the court could not have interfered with an order which was not the subject-matter of the review itself. In our opinion, the second point raised is quite patent,--the appeal being confined to the order passed in review, of the learned Subordinate Judge had no jurisdiction to interfere with an curlier order which was not the subject matter of the appeal.