RANI KANAK PROVA DEBI Vs. ABDULLA AKUNJI

JUDGEMENT

(1.) THE petitioner as a cosharer landlord, in whose favour a decree for her share of rent was passed, applied to have that decree executed in the Court of the Subordinate Judge of Khulna. THE application for execution was dismissed for default on 23 November 1933 as the decree- holder did not comply with the direction of the Court to take steps in proceeding "against the rent land" within 7 days of the order passed on 15 November 1933 after holding that: It was bad move on the part of the decree-holder to fall upon other properties in the first instance.

(2.) IT may be mentioned in this connexion that the decree-holder thought fit to proceed against the property of the judgment-debtor other than the tenure in arrears for realization of her decree for rent, and it was this to which exception was taken by the Court of execution. The application for execution came to be dismissed ultimately, the decree-holder having failed to act according to the procedure indicated by the Court of execution. There was an appeal against the order passed by the Court of execution on 23 November 1933 to the District Judge of Khulna, which was obviously incompetent under the law, and the appeal was dismissed. The question raised in support of the application to this Court, directed against the orders passed by the Court of execution on 15 and 23 November 1933 on which this Rule was issued, were that the Court of execution was wrong in holding that the decree-holder must proceed against the tenure in arrears in the first instance, and further that the Court had no jurisdiction to direct that the decree-holder must proceed against the tenure in arrears in the first instance. The reason given for the order recorded by the Subordinate Judge, the Court of execution, on 15 November 1933 is wholly insupportable and the contention urged in support of the Rule, must be allowed to prevail The Rule is made absolute. The orders complained of are set aside. We direct that the application for execution filed by the petitioner in the Court below be considered on its merits and dealt with in accordance with the law. The costs in the Rule will abide the decision of the Court of execution on remand; hearing fee being assessed at two gold mohurs.