BHARAT CHANDRA NATH Vs. YASIN SARKAR

JUDGEMENT

(1.) I agree in the result of the judgment about to be delivered by Mr. Justice Richardson. Richardson, J.

(2.) The appellant is a decree-holder and the respondent is his judgment-debtor. The appellant having applied for the execution of his decree by the attachment and sale of the respondent s holding, the latter preferred an objection on the ground that the holding was a raiyati holding, not transferable without the consent of the landlord. The petition of objection was filed on the 20th February 1914. Notice of it was duly given to the decree-holder and the matter was set down for hearing. There were several adjournments, the last being to the 18th July 1914. On that date the petitioner did not appear and the petition was dismissed for default. 2. The petitioner then applied to have the order of dismissal set aside. The application purported to be made under Rule 9 of Order IX. On the 24th October 1914 the learned Subordinate Judge held that the order having been made in the course of proceedings in execution, the case did not come within the purview of Order IX, He refused, therefore, to set the order aside. But he further held that nowithstanding the order, the respondent was at liberty to file a fresh petition to precisely the same effect as the original petition. The respondent having done so, his objection was allowed and the holding was released from the attachment.

(3.) Now it is obvious that if this is the law, a judgment-debtor would be in a position to file an unending series of objections on the same ground to the execution of the decree. By neglecting to appear on the date fixed for the hearing of a petition, he would obtain the right to present another. Any order of dismissal for default would be nugatory. The Court would be powerless and the decree-holder might be kept at bay for an indefinite time. The position, therefore, requires some examination.