DHIRENDRA NATH CHANDRA Vs. SATISH CHANDRA GORAIN

JUDGEMENT

(1.) The appeal and the Civil Revision both are by judgment-debtors 4 to 8. The appeal is against an order passed by the learned Subordinate Judge of Dhanbad in an execution proceeding rejecting the objection of the appellants under Section 47, Civil P. C. The Civil Revision is against his order refusing to stay the sale of the disputed lands pending the disposal of the present miscellaneous appeal by this Court.

(2.) I shall deal with the appeal first. The facts leading up to the 'present appeal may briefly be stated thus;-- The decree-holders-respondents 1 to, 23, who are respondents first party in the present appeal, are proprietors of Mauza Jayramdih, within pargana Nawagarh, which contains about 442 bighas of' coal lands. On 26-4-1937, the decree-holders leased these lands to one Sripati Pal, father of respondents 1 to l(b) and husband of respondent- 1 (c), and, Mahadeo Chandra, respondent 2, on payment of royalty, the lands leased being first charge for payment of royalty, etc. At present these, lands are in possession of five sets of persons, viz. (1) Sashankasekhar Pal and others, sons and wife of Sripati Pal, one of the original lessees, (2) Mahadeo Chandra, the other original lessee, (3) Rai Saheb Kunja Behari Chandra, (4) Dhirendra Nath Chandra and his brothers, he present appellants, and (5) Rai Bahadur Waliram Taneja. The appellants have a separate block of 90 bighas of coal lands out of the entire 442 bighas: The decree-holders brought a suit for recovery of arrears of royalty for the entire village against all the above five sets of person's, end, on 26-3-1954, obtained a final decree for sale against the aforesaid persons. The decree was passed for Rs. 75,828-4-3 jointly against all the above persons. The decree-holders on 18-6-1954, executed their decree for the entire amount, but they are proceeding against the lands of the appellants only. The appellants on 3-9-1954, filed an objection under Section 47, Civil P. C., which however, was rejected on 13-12-1954. The sale proclamation was issued on 21-12-1954, fixing 15-2-1955, for sale of the properties advertised. On 15-3-1955, the appellants filed the present objection under Section 47, Civil P.C., out of which the present appeal arises. This objection was rejected by the learned Subordinate Judge on 19-3-1955, on the ground that the objections which have been taken now, could have been taken on the first occasion, and as such these objections not having been taken before are barred by the principle of constructive res judicata. The judgment-debtors have, therefore, preferred the present appeal to this Court.

(3.) In support of the appeal, Mr. S. C. Mazumdar has placed before this Court four points, namely,