SARYUG BARHI Vs. DEVENDAR MAHTON

JUDGEMENT

(1.) This appeal arises out of dismissal of a miscellaneous appeal which was preferred by the present appellant against the dismissal of a miscellaneous case under Section 47 of the Code of Civil Procedure, which was preferred by him in connection with an execution case, namely, Execution Case No. 7 of 1964, in which this appellant figured as a judgment-debtor. It. appears that the execution case was filed on 10-1-1964 in the court of the Munsif 2nd, Gaya, for execution of a decree which had been passed by the 4th Additional Sub Judge Gaya in T.S. 150/43 of 1949/50. The suit was originally instituted in the court of Munsif 1st, Gaya, on the basis of a valuation of Rs. 3750 and the defendant, that is, the present appellant, had taken a plea in the written statement about the incorrectness of the valuation. The suit was, however, subsequently transferred fay the District Judge to the court of the 4th Additional Sub Judge, Gaya, for disposal and it was ultimately decreed by that court on 29-9-1950. It is admitted that the question of valuation was not pressed by the defendant in that court and the trial of the suit had proceeded on the basis of the valuation as given in ,the plaint. An appeal was preferred by the present appellant as against the judgment and decree of the 4th Addl. Sub Judge and it is admitted that the memorandum of appeal had been valued by him at Rs. 3750, and is, the value as given in the plaint. After the decision by the first appellate court, there was also a second appeal before the High Court which was disposed of on 2-8-1963 and the aforesaid execution case was thereafter filed on 10-1-1964, as already stated above. In this execution case, there was a prayer for delivery of possession of the properties with respect to which the decree had been obtained by the respondents. After issue of prescribed notices, the writ of delivery of possession was duly served on 2-4-1964. The decree-holders, thereafter, applied for issue of processes for realisation of the costs and after service of processes of attachment, the sale proclamation was issued fixing 16-7-1964 for sale and the same was served on 14-6-1964. The miscellaneous case out of which the present appeal arises was thereafter filed by the appellant-judgment-debtor on 16-6-1964 and the main contention was that the decree having been passed by the court of the 4th Additional Sub Judge, Gaya, the court of Munsif had no jurisdiction to entertain the execution petition. It was further alleged that all the processes in the execution case bad been suppressed.

(2.) The trial court rejected the contention of the appellant about suppression of the processes in the execution case and further held that the appellant had full know ledge of all the processes. It further held that in view of the provisions of Section 37 of the Code of Civil Procedure, the execution case had been rightly filed in the court of the Munsif 2nd, Gaya, as the court which had passed the decree had been abolished. On the basis of these findings, the miscellaneous case was dismissed. As would appear from the judgment of the lower appellate court, the finding of the trial court regarding service of processes in the execution case and the appellant's knowledge of the same were not challenged and this Court agreed with the trial Court on the point that the Munsif, 2nd Court, had jurisdiction to entertain this petition. The appeal was accordingly dismissed by that court. The present appeal has thereon been filed by the appellant-judgment-debtors.

(3.) Learned counsel for the appellant wanted to make submissions challenging the correctness of the finding about service of processes in the execution case and about the appellant's knowledge thereof. He was, however, not permitted to make any such submission as the finding of the trial court on this point stood affirmed by the decision of the lower appellate court in which court this finding had not been challenged at the time of the hearing. In the circumstances, this finding being essentially a finding of fact could not be challenged in the second appeal as it is not the case of the appellant that there was no evidence in support of this finding or that the court had overlooked any material evidence or misconstrued any part of the evidence in arriving at such finding.