BHUDHAR CHANDRA CHATTOPADHYA Vs. KESHAB CHANDRA GHOSE

JUDGEMENT

(1.) This Rule was issued on the opposite party to show cause why the order of the learned Additional District Judge of Howrah passed on 25 April 1933, in Misc. Appeal No. 1 of 1933 setting aside an order of the Munsif at Amta dated 26 November 1932 allowing an application of the petitioner in a proceeding in execution of a decree in which the relief claimed was that the decree could not be executed against him. The facts and circumstances of the case giving rise to the application before the executing Court, have been set out in very great detail in the judgment of the Courts below, and were placed before me by the learned advocates appearing for the parties in this Rule. The question of jurisdiction properly so called, as raised in this Rule, relating to the inadmissibility of the appeal before the learned Additional Judge, must be decided against the petitioner. The application before the executing Court was obviously one under Section 47, Civil P. C, and could not be treated, as has been contended before me, as an application under Order 21, Rule 58, Civil P. C, merely. The parties proceeded in the Courts below on the footing that the application giving rise to this Rule, was one under Section 47, Civil P. C, and there is, in my opinion, no substance in the contention that there was no appeal in the Court of appeal below.

(2.) On the merits I have no hesitation in expressing agreement with the view taken by the learned Additional Judge in the Court of appeal below. The case of the petitioner was that the decree sought to be executed was against the widow of defendant 1 in the suit, and the petitioner in his capacity as an executor was never a party to the suit, and therefore he must be regarded as a claimant in the execution proceedings and his claim should be given effect to, in view of the fact that there was no decree against the executor who represented the estate when the execution was levied. As indicated already I agree with the view taken by the learned Judge of the Court of appeal below, that the decree-holder rightfully obtained the decree as against the estate of the deceased; and he was entitled to have his remedy as against any body who may have stepped in the meanwhile, into the shoes of the original legal heir as legal representative of the estate.

(3.) In my judgment, the order made by the executing Court allowing the objection and releasing the property from attachment was rightly set aside by the learned Additional District Judge in the Court of appeal below. In the result, the Rule is discharged, and the order of the learned Judge is confirmed. I make no order as to costs in this Rule.