DWIPAL CHANDRA BARDHAN Vs. JIBAN DEBI

JUDGEMENT

(1.) This appeal has arisen out of an order passed by the Subordinate Judge, 24-Pargannas, on 6 October 1928. The facts necessary to be stated are the following. The decree-holder obtained a mortgage-decree and in execution thereof purchased the mortgaged property which was a dwelling house and thereafter obtained an order for delivery of possession. In the course of the proceedings that followed resistance was offered to his obtaining possession of two rooms in the house with the result that he complained of such obstruction having been caused to him not only by the judgment-debtor but also by the judgment-debtor's wife in her personal capacity as well as in her capacity as guardian of her minor son. This application having been made before the Court on behalf of the decree-holder complaining of the aforesaid obstruction, opposition was entered on behalf of the judgment debtor's wife. She alleged that the minor was born before the date of the suit and had not been made a party thereto and consequently was not bound by the decree and the sale. The Court accepting the contention urged on behalf of the judgment-debtor's wife held that she was claiming in good faith to be in possession of the rooms in respect of which resistance was offered and that the application for delivery of possession, in so far as the said rooms are concerned, was to be dismissed. Prom this order the present appeal has been preferred by the decree-holder.

(2.) A preliminary objection has been taken as to the competency of this appeal, it being urged that the order from which it has been preferred does not come within the purview of Section 47 of the Code and consequently the decree-holder has no right of appeal from the order. This objection in our opinion must be upheld.

(3.) On behalf of the appellant it has been urged that although the order was passed in a proceeding under Order 21, Rule 97, it was one which came within the purview of an order passed under Section 47 of the Code. Reliance in this behalf was placed upon the decision of the Full Bench of this Court in the case of Kailash Chandra Tarafdar V/s. Gopal Chandra Poddar A.I.R. 1926 Cal. 798.