BISHNU PADA BHATTACHARYA Vs. DWARKA PRASAD BHAGAT

JUDGEMENT

(1.) This is a decree-holder's application in revision against the order of the 3rd Additional Subordinate Judge, Dumka allowing an application under Rule 58 of Order 21 of the Code of Civil Procedure (hereinafter referred to as 'the Code'). Mr. Ghosal appearing in support of this application raised a question that the application under Rule 58 itself was not maintainable and therefore, the executing Court has committed an apparent error of jurisdiction.

(2.) The short facts for appreciating the question raised, for my consideration may be briefly stated. The property involved in this case is a piece of land with a house measuring 1 kathas 16 dhurs appertaining to plot No. 1900 situate within Pakur town. It was recorded in the name of one Lakshminia Bhagatwain, widow of late Thakur Prasad Bhagat. Lakshminia died leaving behind three sons namely, (1) Bhaglum (2) Jamuna and (3) Ganesh. The second son namely, Jamuna executed a mortgage bond in the year 1968 with respect to the said property in favour of the decree-holder describing himself as the sixteen annas' owner of the land in question. On the basis of that mortgage bond, the petitioner brought a mortgage suit in the year 1970, in which a compromise decree was passed in his favour which is under execution. In this execution proceeding the opposite party, who are both sons of the aforesaid Bhaglu, filed a claim case under Rule 58, Order 21 of the Code, on the ground that Jamuna Bhagat could not have mortgaged the entire property inasmuch as his share was only 12 dhurs and that the mortgaged decree was not binding on them. That application was registered as a miscellaneous case and evidence was gone into by the parties. The learned subordinate Judge has recorded a finding of fact that the applicants, before him, namely, the opposite party "Succeeded to prove their possession on two-third portion of the suit house whereas the possession of Jamuna Bhagat on two-third share appears to be very much doubtful." He accordingly allowed the application.

(3.) Mr. Ghosal, as already indicated above, contended that the nature of the decree being a mortgage decree, the application of the opposite party under Rule 58 itself was not maintainable as there was no question of attachment in a mortgage decree. He further contended that there being a mortgage decree with regard to the properties in question in favour of the petitioner, the executing court could not have gone behind the same by entertaining the application of the opposite party.