HRIDOY KRISHNA KUNDU Vs. BINODE BEHARY BANDOPADHAYA

JUDGEMENT

(1.) This rule arises out of a proceeding taken under Order 21, Rule 58 as well as Order 21, Rule 62, Civil P.C. It appears that the petitioner brought a suit for money against two persons Atal Behari Dalai and Gour Charan Dalai who are opposite parties 2 and 3 in the t rule in the Court of the Munsiff, First Court, Basirhat. That suit was ultimately decreed by the said Court. The I decree was put into execution in the same Court and certain properties of the judgment- debtors were attached. On 15 December 1928 opposite party 1, Benode Behari Bandyopadhaya, made an application to the executing Court in which he prayed that lot 1 be released from attachment and lots 2 and 3 be sold subject to a mortgage in his favour under Order 21, Rule 62, Civil P.C. The claim with regard to lot's was allowed by the Munsiff and with regard to lots 2 and 3 the Munsiff made an order to the effect that the said lots be sold with notice of the mortgage alleged to have been executed in favour of Babu Benode Behari Bandhopadhya, that is, opposite party 1.

(2.) Against this decision of the Munsiff, the present rule was obtained and the terms of the rule are as follows: Let the record be sent for and a rule issue calling on the opposite party to show cause why the order of the Munsifi releasing half share of the property described as lot 1 and passing the order with reference to lots 2 and 3 directing such lots to be sold subject to the mortgage of the opposite party should not be set aside or such other or further order made as to this Court may seem fit and proper.

(3.) A copy of the petition was sent to the Munsiff in order that he might make certain observations with reference to para 6 of the petition. That paragraph runs as follows: That the said two deeds were alleged to have been executed by the two brothers Atal Behari Dalai and Gour Charan Dalai the judgment-debtors in the original suit. That the notes on both these documents by the Sub-Registrar showed that the execution was admitted by one of the executants only, namely, Atal Behari Dalai and that the other brother, namely, Gour Charan Dalai never appeared nor admitted execution before the Sub-Registrar. That it was brought to the notice of the learned Munsifi by Babu Radhica Prosad Chakravarty, the lawyer of your petitioner both at the time of the hearing and at the time of the argument of the ease. That the letter written by a Babu Radhica Prosad Chakravarty to Mr. Anil Chandra Roy Chowdhury, advocate, in answer to an enquiry made by the latter sent through me is annexed herewith and marked Ex. A.