RAJESHWAR RAI Vs. SHANKAR RAI

JUDGEMENT

(1.) In this miscellaneous second appeal a question of law falls to be decided which, in my opinion, has been directly decided by a Bench of this Court in Jagdeo v. Basudeo Narain Singh, 1953 BLJR 17 : (AIR 1954 Pat 92). But, since some points of distinction were endeavoured to be made out by the learned advocate for the appellants, as also a vehement argument was advanced in order to persuade me to doubt the correctness of that authority and to refer this case to a larger Bench for its re-consideration, I think it is necessary for me to state a few facts and to give some reasons of mine too in support of the decision of the question of law involved in this appeal.

(2.) Respondents 1 and 2 filed a title suit against the appellants and respondents 3 and 4, for declaration of title and recovery of possession in respect of the suit land. The suit was dismissed by the trial court. The plaintiff-respondents filed First Appeal No. 354 of 1953 in this Court. It was heard by a learned Single Judge and was allowed on the 15th May, 1959. The plaintiff's suit was decreed. Shortly after the judgment was pronounced but before a formal decree was prepared, as required by Section 33, Code of Civil Procedure (hereinafter referred to as the Code), Execution Case No. 12 of 1959 was filed in the court below for execution of the decree, which was passed or was to be formally drawn up in First Appeal No. 354 of 1953. The execution case was filed on the 1st July, 1959. Order No. 2, dated 3-7-59 reads thus :

(3.) In Section 2 of the Code it is provided: "In this Act, unless there is anything repugnant in the subject or context. * * * * *