SAVITRI DEVI Vs. KAMAL SINGH

JUDGEMENT

(1.) This appeal by the judgment-debtors is directed against an order dated 22-8-1952, whereby the Subordinate Judge, First Court, Arrah, has dismissed their objection under Section 47, Civil P.C., in Execution Case No. 108 of 1950.

(2.) Shortly stated, the facts of the case are as follows; On 20-1-1950, a decree passed by the Privy Council in an appeal arising out of Suit No. 1282 of. 1926 of the Calcutta High Court was transferred by the Calcutta High Court to Arrah for execution. On 25-1-1950, Maharaj Kumar Kamal Singh and others, heirs and legal representatives of the decree-holders, filed an application before the Subordinate Judge, First Court, Arrah, for execution of the decree. This, was numbered as Execution Case No. 7 of 1950. On 6-10-1950, that execution case was dismissed or part satisfaction. On 9-10-1950, the heirs and legal representatives of the decree-holders filed a fresh application for execution in the same Court. This was numbered as Execution Case No. 108 of 1950. On the 26-2-1952, the judgment-deters filed their objection under Section 47, Civil P.C. in Execution Case No. 108 of 1950 and that was numbered as Miscellaneous Case No, 6 of 1952. The Subordinate Judge, First Court, has dismissed this miscellaneous case and rejected the objections raised by the judgment-debtors. Hence the appeal.

(3.) One of the objections taken by the judgment-debtors before the Court below was that Execution Case No. 108 could not proceed because the Court at Arrah had become 'functus officio' in view of the fact that it had already sent a certificate as required under Section 41, Civil P.C., to the transferor Court, i.e., the Calcutta High Court. The learned Subordinate Judge overruled this objection by saying that "no certificate as contemplated under section 41 had been sent and at best a mere information was conveyed regarding part satisfaction."