AMIYA PROBHA DAS Vs. JYOTI PROKASH GHOSH

JUDGEMENT

(1.) These two appeals arise out of a proceeding in execution of decree obtained by the respondent against Sarat Chandra Das, husband of the appellant, Amiya Probha Das, and others, on 30.5-1941 in Suit No. 1840 of 1940 in the original side of this Court. The claim in that suit was based on a hand-note executed by Sarat Das and others in favour of the father of the respondent, in Mymensingh. It was subsequently assigned to his son, the present respondent, in Calcutta. The decree was transferred to the District of Mymensingh for execution in March 1943 and the decree-holder prayed for attachment and sale of eleven lots of property. The judgment-debtor, Sarat Das, preferred an objection under Section 47, Civil P.C., to the execution on the ground that the decree was made without jurisdiction. The appellant, Amiya Das, preferred a claim under the provisions of Order 21, Rule 58, Civil P.C., to lot 4, a holding in village Dhamsur with the structures thereon described separately as lot 8, and to lot 6, a holding in village Mallikbari with the structures thereon described separately as lot 7.,

(2.) Miscellaneous cases were started on account of this objection and claim. Judgment- debtor, Sarat Das, died during the pendency of these cases and the appellant Amiya Das, who was his only heir, was brought on the record as his representative. Both cases were heard together and were dismissed. The learned Sub-ordinate Judge held that the objection under Section 47, Civil P.C., could not be sustained since there was nothing on the face of the record to show that the decree was made without jurisdiction, and after consideration of the evidence he came to the conclusion that lots i and 8 of village Dhamsur and lots 6 and 7 of village Malikbari belonged to the judgment-debtor, Sarat Das, and were in his possession up to the time of his death. Amiya Das has now appealed against these decisions.

(3.) A preliminary objection was taken by Mr. Das for the respondent with regard to the competency of Misc. Appeal No. 4, which is directed against the decision in respect of the appellant's claim made originally under Order 21, Rule 58, Civil P.C. His contention is that by reason of the provisions of Order 21, Rule 63 no appeal lies against the order rejecting the claim. Having regard, however, to the principles laid down in the Full Bench decision, Panchanan Bandopadhya V/s. Rabia Bibi ( 90) 17 Cal. 711 (F.B.), we are of opinion that the decision regarding the claim of Amiya Das which was made at a time when she had by the death of her husband become the representative of the judgment-debtor, was a decision under Section 47, Civil P.C. It is true, as pointed out by Mr. De, that some distinction may be made between the facts of the case which led to the Full Bench decision referred to above and the present one, in which the wife of the judgment-debtor preferred her claim before she became his representative, but we think that fact makes no difference in principle and we are satisfied that the decision against which Misc. Appeal No. 1 has been preferred is clearly on a question "arising between the parties to the suit in which the decree was passed or their representatives, and relating to the execution discharge or satisfaction of the decree." In our opinion, therefore, the appeal is competent.