LACHHMILAL Vs. FIRM SRINIWASH RAM KUMAR

JUDGEMENT

(1.) The only point in this cases apart from the minor question to which I shall in a moment refer, is whether this suit lay. It is contended by Mr. Sushil Madhab Mullick that the application which at one time was treated as an application under Order 21, Rule 58, was in fact an objection under Section 47, Civil P.C., and that that decision is final and would bind the parties failing an appeal, which in this case, has not been preferred.

(2.) The appeal was not preferred because the plaintiff who is the respondent before us in this appeal, treated the former application (as I have already indicated) as an application under Order 21, Rule 58, and having failed in that claim case, proceeded to bring a suit under Order 21, Rule 63. It is only when he got into the Court of the Munsif that he was met with the objection to which I have already referred. Now the other point raised be Mr. Sushil Madhab Mullick on behalf of the defendant-appellants relates to the last part of the order of the Munsif which runs thus: The suit as against defendant 1 is hereby dismissed but in view of my other findings against him, I make no order as to costs.

(3.) To explain the position it is only necessary to make one statement. The property which was the subject-matter of the proceedings to which I have referred was held by the Judges in the Courts below to be the joint family property and not the separate property of defendant 1 as alleged. But it being the joint family property, the Judges in the Courts below have divided the property in the sense of making that share of the property, which would represent the share of the deceased father, liable in execution.