SARAT KUMAR ROY Vs. HARIPADO CHATTERJEE

JUDGEMENT

(1.) These four appeals have arisen out of two orders passed in two execution cases by the Subordinate Judge of Burdwan and affirmed on appeal by the Judge of that District.

(2.) There were two decrees for rent of certain lands obtained by the landlord decree-holder. The decrees were sought to be executed in 1919 when the judgment-debtor objected that he was not liable to pay the entire amounts of the decrees as some rival landlord had in the meantime established his title to a portion of the lands. These objections were given effect to by the executing Court which ordered that the decrees could be executed for only small portions of the amounts thereof. The decree-holder then preferred two appeals to this Court. After the appeals were preferred, the execution proceedings in both the cases were on 15th June 1922 dismissed for default as the decree-holder though asked to take steps to go on, failed to do so. The appeals ended on 11 June 1926 in favour of the decree-holder it being held that the decrees were fit to be executed in their entirety and that the executing Court was not competent to vary the decrees on objections taken under Section 47, Civil P.C. Thereafter on 4 May 1927, the decree-holders again applied for execution, this time varying the list of properties against which he wanted the decrees to be executed, retaining some of the properties in the list attached to his previous petition and including some other properties that were not in that list. The Subordinate Judge as well as the District Judge on appeal have held that the execution in respect of the amounts allowed by the executing Court in the first instance was barred by reason of the decree-holder not having taken any steps in pursuance of that Court's order and as a consequence of which the cases were dismissed for default, but that in respect of the balance of the decretal amounts the execution could proceed. Both parties have appealed.

(3.) We are of opinion that the view taken by the Courts below is not correct. The effect of the order passed by this Court in the appeals preferred by the decree-holder was to overrule the objections of the judgment-debtor under Section 47, Civil P.C., and to leave the decree-holder free to go on with the execution that he had started. It is true that by reason of his failure to take steps in the meantime the execution case had been dismissed on 15 June 1922, but that failure was in respect of the execution that the executing Court had created for him and which he was not bound to go on with. It was entirely optional with him to proceed with the partial execution or not; if he had been unsuccessful in the appeals the order of dismissal might have stood in his way. But he took that risk, and if in the end it was held by this Court on appeal, as it was held that the execution oases that he had started were in order, the effect of that order was to remove the clog that had been put on the execution by the objection of the judgment-debtor. The order related back to the point of time when the clog was placed and had the effect of reopening the proceedings at the stage at which they were then.