HARI KISHEN RATHI Vs. GOPESWAR DEGHURIA

JUDGEMENT

(1.) THE question which falls for determination in this Rule is as to whether an appeal lay to the District Judge against the order made by the Munsif setting aside a sale which was held on 11 December 1935 in circumstances to be presently mentioned. It appears that the petitioner before me having obtained, on 8 June 1934, a money decree against opposite parties 1 and 4, Gopeswar Deghuria and others, filed an execution case in the Court of the Subordinate Judge of Bankura and attached a mortgage decree obtained by the judgment- debtors, opposite parties 1 to 3, Gopeswar Deghuria and others, against one Ramratan Singh, and started proceedings for execution of the decree in the third Court of the Munsif at Bankura. It also appears that one Nibaran Chandra Chatterji instituted a mortgage suit in the first Munsif's Court at Bankura against the same judgment-debtors, that is, Gopeswar Deghuria and others, and obtained an order of attachment before judgment on 16 February 1934 with the result that the mortgage decree was attached, and having obtained the order of attachment he filed a petition of objection in the execution case started by the petitioner praying that the said execution case should either be dismissed, or in the alternative that he should be allowed to have the money attached. This objection was overruled and the petitioner was allowed to proceed with his execution case by an order dated 18 July 1935.

(2.) THE execution case of the petitioner was proceeded with and the subject matter of the attached decree which the Deghurias had obtained against Ramratan was put up to sale on 11 December 1935, and was purchased by one Bimalananda Goswami for a sum of Rs. 190. THE petitioner then applied for withdrawal of the attachment in the Court of the Subordinate Judge and for the withdrawal of the execution petition as no affidavit was filed in support of the petition. THE application was rejected on 3 July 1935. Nibaran Chandra subsequently filed two other petitions of objection to the execution case started by the petitioner and he alleged that the said execution case could not proceed for two reasons: firstly, because there was an understanding between him and the petitioner, Hari Kissen Rathi, not to proceed with the execution case; and secondly, because the execution case is based on the order of attachment which was not in existence then. THE Munsif overruled the first objection, but he allowed the second objection with the result that the execution case of the petitioner was dismissed and he set aside the sale already held under the order of the Court in course of the said execution proceeding. THE petitioner accordingly preferred an appeal to the District Judge of Bankura, against the order setting aside the sale which was held on 11 December 1935. THE learned District Judge threw out the appeal on the preliminary ground that no appeal lay to him as this was a matter regarding the satisfaction of the decree obtained by the Deghuria against Ramratan Singh as between the two rival decree-holders and not between the decree- holder and the judgment-debtor and therefore Section 47 of the Code was not applicable. THE petitioner then applied for a Rule for the revision of this appellate order of the District Judge and obtained this Rule. It is contended on behalf of the petitioner that the learned District Judge was clearly in error in holding that no appeal lay to him seeing that the order made by the Munsiff was one which affected the judgment-debtor also and that the judgment-debtors were parties to the present proceeding. THE learned District Judge, in holding that no appeal lay, relied upon a decision of this Court in Gangadas Bhattar V/s. Jogendra Nath Mitter (1907) 11 C W N 403. In that case it is to be noticed that the question arose between two rival decree-holders with regard to rateable distribution. That case does not seem to apply to the facts of the present case, for here the application which was made by the petitioner, to be substituted in place of the Deghuria in the execution proceedings against Ramratan Singh was under Order 21, Rule 53, Civil P.C. Under Clause 3 of that Rule: THE holder of a decree sought to be executed by attachment of another decree of the nature specified in sub-r. 1 shall be deemed to be the representative of the holder of the attached decree and to be entitled to execute such attached decree in any manner lawful for the holder thereof, so that the petitioner was the representative of the decree-holder, namely, the Deghurias, in the execution case started against Ramratan Singh. THE order of the Munsif was an order setting aside the sale which was held at the instance of the petitioner. This is an order which undoubtedly affected the judgment-debtor Ramratan and although the question really arises by reason of the objection put forward by the other decree-holder, namely, the opposite party in the present case, i. e., Mr. Chatterjee, still it is a question which affects the judgment-debtor, the same having been set aside. It seems to me that the question raised between these two decree-holders affects the judgment-debtor and in such circumstance the question will be one also between the representative of the decree-holder, viz. the petitioner and the judgment-debtor Ramratan Singh, i.e. between the parties to the suit, seeing that the petitioner is a representative of the decree-holder in the suit against Ramratan. I think, therefore, that the question is one which falls within the purview of Section 47 and that an appeal to the District Judge is competent. THE result, therefore, is that this Rule is made absolute. THE order of the learned Judge refusing to entertain the appeal on the preliminary ground is set aside. THE learned District Judge is directed to rehear the appeal on its merits. THE petitioners are entitled to costs of this Rule which I assess at one gold mohur.