MIR MAHOMED MOZUFFER HOSSEIN Vs. KISHORI MOHUN ROY

JUDGEMENT

(1.) THIS is an appeal against a decree of the High Court at Calcutta, reversing a decree of the First Subordinate Judge of Dacca in favour of the Appellants, in a suit brought by them against the first and second Respondents, and another Respondent, Baikunt Mohun Roy, who has died during the appeal, and whose representatives have been substituted for him. There were two other Defendants who are not Respondents---viz. Mussummat Amirunnissa Khatoon, the widow, and Abdul Ali, the son of Abdul Ali, deceased. The facts upon which the question to be determined arises appear to their Lordships to be these. On the 9th of May, 1865, the Appellants obtained a decree against Abdul Ali for a large sum of money, from which he appealed to the High Court at Calcutta. That Court affirmed the decree with an immaterial modification. Abdul Ali then appealed to Her Majesty in Council. His appeal was substantially dismissed, but, in consequence of certain objections taken by him, it was referred back to the High Court to ascertain and declare for what amount the Appellants were to be entitled to issue execution under the decree. On the 28th of February, 1872, a final decree was made by the High Court, by which it was ordered and declared that the Appellants were at liberty to take out execution for Rs. 62,913 9a. 3p. with costs and interest.

(2.) DURING these proceedings Abdul Ali died, and Amirunnissa for herself and as guardian of her minor sons by Abdul Ali, and Karimunnissa Khatoon, a daughter of Abdul Ali, were substituted in his place in the record as his representatives. On the 18th of May, 1872, the Appellants caused the property in question in this appeal to be attached in execution of the decree, by a prohibitory order dated the 3rd of May, 1872, issued out of the Court of the District Judge of Dacca. The order prohibited the judgment debtors from alienating the property, and all persons from receiving the same by purchase, gift, or otherwise. By the Code of Civil Procedure then in force, and by the Code subsequently and the Code now in force, any private alienation of the property attached by sale, gift, or otherwise is made null and void. On the 11th of June, 1872, Amirunnissa put in a claim to the property attached, alleging that it belonged to her in her own right, having been

(3.) ON the 28th of December, 1872, the Officiating District Judge of Dacca delivered his judgment, allowing the claim and directing the property to be released from attachment. The Appellants appealed to the High Court against this judgment, and on the 10th of July, 1873, that Court, considering that the real issue in the case had been misconceived, and that the Judge had not entered into the evidence which was material on the subject to be decided, framed an issue whether the property which had been attached and was admittedly in the possession of Amirunnissa, was a property which came into her possession as part of the estate of Abdul Ali, and remanded the case to the Judge of Dacca for trial. The order of the 28th of December, 1872, releasing the property from attachment, was not set aside; whether it should be set aside depended upon the finding on this issue.