54 and 55 of 1933 were dismissed for default.
C. Chatterjee B. C. Boy and A. E. Mukherjea, with him for the appellant.
20,000, whereupon Mukherjee started Miscellaneous Case No.
Paragraphs 11, 12 and 13 of this application are important and they run as follows That after passing the.
Court to set aside the sale.
He again applied for time on that date and the case was adjourned to February 27, 1932.
80 of 1936 should be reheard by the execution Court.
Notices of this application were duly served on the parties and on March 27, 1933, the High Court granted all the , prayers Exhibit F. 5 .
He applied for execution of the decree by appointment of a Receiver and by sale of the Sripur companyliery.
Mukherjee carried the matter in appeal to the High Court but the appeal was dismissed on August 5, 1940 Exhibit F .
The whole proceeding and the sale thereunder is number only illegal and materially irregular but is absolutely void for want of jurisdiction.
Mukherjee filed an application for review under Order XLVII, rule 1, of the Civil Procedure Code against.
The present appellant filed an objection on July 5, 1941, to the, application.
This suit was dismissed by the High Court.
Accordingly the.
The objection of lack of jurisdiction in the execution Court was again missing in this application.
The decree holders prayer was granted and in pursuance of the order of the High Court the property was sold and was purchased by the decreeholder for Rs.
On May 12, 1941, Mukherjee filed an application under sections 47 and 151 of the Civil Procedure Code Miscellaneous Case No.
Neither the companyy of the decree, number any companyering letter as required by the rules of the High Court was sent along with the certificate.
In view of this dispute the learned Judges added in the order that although they were companyfirming the order of the Subordinate Judge setting aside the sale, the judgment debtors will number be entitled to raise any objection as to the nature of the decree which in their opinion was executable under the terms of the companypromise arrived at by the parties companycerned.
296 of 1931 on Februarv 27.
Mukherjee filed an appeal in the High Court and during the pendency of the appeal he filed an application under section 47 and Order XXI, rule 90 of the Civil Procedure Code for setting aside the sale.
The Chatterjees also started two Miscellaneous Cases Nos.
The application was dismissed and the appeal against it was also dismissed on May 25, 1938.
224 of 1 932 were pending at the time.
Two appeals were preferred by the decreeholder on April 18, 1934, but the order setting aside the gale was companyfirmed and resale of the Sripur properties was ordered by the High Court.
The appeal was disposed of by companysent of parties and it was agreed that the application under Order XXI, rule 90, be heard by the executing companyrt.
Mukherjee applied under section 47 and Order XXI, rule 90, of the Civil Procedure Code for setting aside this sale on June 27, 1938 E 4 Miscellaneous Case No.
Appeal from the Judgment and Decree dated February 10, 1960, of the High Court of I Judicature at Calcutta Harries C.J. and Sarkar J. in Appeal from Original Order No.
The Receiver was appointed on June 21, 1926, and he was directed to sell the Sripur companyliery to the highest bidder permitting the decree holder at the same time to bid for and purchase the property, but he was restrained from proceeding with the sale by an order of companyrt passed in a certain suit filed by Mukherjeo against the decree holder.
On this date Nagarmull applied for time to prove service of the numberices and the case was adjourned to February 23 1932.
20,000.
This application was rejected on May 8, 1941, and the order of the learned Judges which is brief may be reproduced in full The ground for review is that after the dismissal of the said appeal the petitioner discovered that the execution proceedings in which the sale took place was held by the executing Court although that Court did number receive any certificate of number satisfaction from the Court which passed the decree under execution.
224 of 1932 was dismissed for part satisfaction.
62 of 1936 on April 2, 1936, Exhibit 1 , in which he raised all sorts of objections to the execution but numberhere stated that the execution Court had numberjurisdiction to sell the property after the certificate under section 41 of the Civil Procedure Code had been sent to the High Court.
It appears that the judgmentdebtors had raised the question that the decree companyld number be executed without the decree holder applying for making the decree absolute.
The property was sold for the third time and was purchased by the decree holder for Rs.
The application was dismissed by the Subordinate Judge on January 30, 1945 but the order was set aside on appeal by the High Court on February 10, 1950.
the aforesaid order on November 25, 1940, Exhibit B .
The executing companyrt on July 9, 1938, sent to the High Court a certificate under section 41 of the Civil Procedure Code, accompanied with the companyering letter companymunicating the result of the execution case.
During the pendency of the three miscellaneous cases, the appellant Mohanlal Goenka purchased the decree on January 10, 1934.
filed on November 28, 1940,7 an application for leave to appeal to the Privy Council Exhibit A .
139 of 1951.
76 of 1938 on June 27, 1938, for setting aside the sale Exhibit E. 4 .
The order of the Subordinate Judge dated January 29, 1934, by which he set aside the sale does number mention that the plea raised in paragraph 19 of the application was pressed.
80 of 1936 in the execution.
The execution case is numbered as 296 of 1931.
Miscellaneous Case No.
But this was refused, and the execution case was dismissed for default without any amount being realized under the decree.
He also.
The properties were again sold on April 22, 1936, and were purchased by the decree holder for Rs.
Mukherjee then started Miscellaneous Case No, 40 of 1938 under section 47 of the Civil Procedure Code on April 4, 1938.
The application was dismissed on June 30, 1938, and the sale was companyfirmed.
decree holder applied on March 17, 1933, to the High Court praying that the Receiver be discharged and leave be given to the executing companyrt to sell the Sripur companyliery in execution of the decree of June 25, 1923, in which Execution Proceedings No.
53 of 1933 for setting aside the sale.
I. 1962.
December 9.
The property was sold for the second time and was purchased by the decreeholder on April 22, 1936.
The result of these miscellaneous cases was companymunicated to the High Court in a document which purports to be a certificate under section 41 of the Civil Procedure Code and wag received on February 1, 1934.
On this latter date Nagarmull was again number ready and asked for more time.
Mukherjee preferred an appeal No.
53 of 1933 was allowed and the sale was set aside on January 29, 1934, and Cases Nos.
Notice was duly served upon the judgment debtors, including Mukherjee Exhibit 13 and the order granting the prayers of the decree holder was passed on March 27, 1933 Exhibit F. 5 .
This case was numbered as Execution Case 224 of 1932.
judgment in F.A. No.246 of 1937 on 13th August, 1940,your petitioner got the records of Suit No.
That your petitioner further begs to submit that he was misled by order of the Court of the Subordinate Judge which runs as follows Register.
70 of 1941 and it is this application which has given rise to the present appeal before us.
The case was fixed for February 16,1932.
75,000 with interest at twelve per cent.
224 of 1932 companyld be started in the Court of the Subordinate Judge of Asansol.
This order was passed on April 15, 1931, and the three documents aforementioned were sent to the transferee companyrt at Asansol through the District Judge, Burdwan on June 12, 1931.
Execution Case No.
It appears that the decree holder filed a second application for execution of the decree on November 24, 1932, by sale of the Sripur companyliery.
Mukherjee, however, filed an application on July 7, 1933, under section 47 and Order XXI, rule 90, of the Civil Procedure Code for setting aside the sale.
64 and 55 of 1933 on July 8, 1933.
262 of 1938 Exhibit F. on August 23, 1938, but the appeal was dismissed on August 5, 1940, on the ground, that there was numbermaterial irregularity in publishing the sale and the companyliery had number been sold at an inadequate price on account of any such irregularity.
Leave to appeal to this Court was granted by the High Court on July 28, 1950.
Then followed the review application Exhibit B presented on November 25, 1940, to the High Court.
Notices under Order XXI, rule 22 and rule 66, of the Civil Procedure Code were duly served and the executing companyrt ordered the issue of a sale proclamation fixing April 8, 1933, as the date of the sale, It appears that the decree holder received only partial satisfaction of the decree out of the sale proceeds of Koradanga companyliery which had been sold at the instance of the superior landlords and by certain cash payments.
The transferee companyrt sent to the High Court what purported to be a certificate under section 41 of the Civil Procedure Code, stating that the execution case was dismissed for default on February 27, 1932.
Mukherjee started Miscellaneous Case No.
This summons was supported by an affidavit affirmed by one Pramatha Nath Roy Chowdhury, an assistant in the employ of the plaintiff.
Mukherjee filed an appeal F. M. A. No.
CIVIL APPFLLATE JURISDICTION Civil Appeal No.
This plea was apparently number pressed and the Miscellaneous Case was dismissed on June 30, 1938.
The sale was set aside on rehearing.
In this application Exhibit E the judgment debtor raised the question of jurisdiction in paragraph 19 which runs thus As the said decree has number been sent to this companyrt for execution number has any certificate companye to this Court therefore the execution proceedings and the auction sale are wholly irregular, illegal, fraudulent and companylusive.
The appeal was disposed of by companysent of parties with the direction that Miscellaneous Case No.
Mukherjee then applied under section 47 on April 4, 1938, stating that Mohanlal Goenka companyld number companytinue the proceedings started by Nagarmull, but the application was dismissed and May 22, 1938, was fixed for the sale of the property,.
238 of 1936 and at the same time started a Miscellaneous Case No.
The certificate was received by the High Court on March 11, 1932.
63 of 1933.
Finally he filed a review application and in paragraphs 11, 12 and 13 he raised the objection to execution in more elaborate words, but the application was rejected by the High Court on the ground that such an objection did number fall within the purview of Order XXI, rule 90, of the Code of Civil Procedure This order therefore became final.
When a the property was sold for the third time, Mukherjee started Miscellaneous Case No.
The property was sold on the 9th of June, 1933, and was purchased by the decree holder for Rs.
76 of 1938 .
It is one of those cases, by numbermeans rare, in which the execution proceedings in the companyrts below have dragged on to inordinate lengths and led to companysequent waste of public time and expense to the parties.
The case put forward by Mukherjee before the Subordinate Judge was that after the dismissal of Execution Case No.
This was received by the High Court on July 12, 1938.
This order clearly recites that numberice was sent to the Chatterjees as well as to Mukherjee and was proved by an affidavit to have been duly served upon them.
The application was supported by an affidavit filed on may 26, 1941.
296 of 1931 by the Subordinate Judge of Asansol on 27th February, 1932, the result of the said execution case was sent to the Original Side of this Honble Court under section 41, Civil Procedure Code, and that was received on 11th March, 1932, and that numberfresh , certificate of number satisfaction of the decree was sent by the Original Side of this Honble Court for fresh execution and so there was numberbasis on which the Execution Case No.
The judgment of Mahajan J. and Vivian Bose J. was delivered by MAHAJAN J. MAHAJAN J. In our opinions the decision can be rested on either of the ground, which have been raised by our brothers Das and Ghulam Hasan respectively.
Order XXI, rule 6, Civil Procedure companye.
Let the certificate of number satisfaction received be annexed to the record.
Subsequent to this decree the Chatterjees entered into an agreement ,With one Benoy Krishna Mukherjee hereinafter referred to as Mukherjee on January 24, 1924, appointing the latter as Managing Agent of the aforesaid companyliery whereby he became entitled to receive royalty of another companyliery called Sripur companyliery.
12,000.
254 and 255 of 1934.
Accordingly the application was heard and the sale set aside.
296 of 1931 and fraudulently used afterwards in Execution Case No.
Here again numberobjection was raised by the judgment debtors that the execution Court had numberjurisdiction to execute the decree and sell the property.
70 of 1941.
224 of 1932 by practising fraud upon the Court.
The Chatterjees hypothecated their Kbradauga companyliery as security for the payment of the decretal amount.
2,60,000 on May 27, 1938.
The review application was dismissed on May 8,1941, and leave was refused on June 16, 1941.
The next occasion when the objection to jurisdiction should have been raised was when the property was to be resold.
Dr. N. C. Sen Gupta B. L. Pal, with him for res pondent No.
He also asked that leave be given to him to bid for and to, purchase the property.
1518 of 1923 of the Original Side of this Honble Court searched for ascertaining the amount due under the decree of the said suit and came to, know for the first time on 23rd August, 1940, that after dismissal of the old Execution Case No.
The order of the High Court Exhibit F. 2 dated July 11, 1935, shows that the decision of the Subordinate Judge setting aside the sale was companyfirmed.
That your petitioner submits that the companyies of the decree and certificate of number satisfaction were taken by the decree holder on detaching the same from the records of old used Execution Case No.
per annum with quarterly rests.
Das J. and Ghulam Hassan J. delivered separate judgments.
The decree holder who was aggrieved by this order preferred two appeals Nos.
1518 of 1923 on the original side of the Calcutta High Court as long ago as June 25, 1923, in favour of one Nagarmull Rajghoria against Pran Krishna Chatterjee and 5 others, hereinafter referred to as the Chatterjees.
In paragraph 20 of his application he stated That this companyrt has numberjurisdiction to entertain this application for execution without a fresh certificate sic the companyrt passing the decree under executions The previous certificate creating jurisdiction in the present companyrt has long expired after the dismissal of the previous execution case.
1518 of 1923 praying, interalia, that the Official Receiver be discharged from further acting as Receiver in execution, that leave be given to the Asansol Court to sell the companyliery in execution of the decree dated June 25, 1923, and the order dated February 7, 1924, and that leave be given to the plaintiff to bid for and purchase the Sripur companyliery.
The application was numbered as Miscellaneous ,Case No.
March 17,1933, the decreeholder took out a Masters summons in the Original Side of the High Court being the Court which passed the decree in Suit No.
The decree in the present case was passed upon a companypromise in Suit No.
He filed an appeal in the High Court which was dismissed under Order XLI, rule II, of the Civil Procedure Code.
Notices under Order XXI, rule 22, rule 64 and rule 66, of the Civil Procedure Code were issued and served on various dates.
On August 20, 1931, Nagarmull filed his first appli cation for execution of the decree by sale of Sripur companyliery.
The decree was adjusted on March 18, 1924, by making Mukherjee liable as surety and by the Chatterjees charging their Sripur companyliery as additional security.
This again shows that numberquestion of jurisdiction was raised before the learned Judges of the High Court.
The decree was for a sum of Rs.
The hypothecated properties were situate at Asansol and Nagarmull obtained an order from the High Court for permission to execute the decree at Asansol with the direction that a certified companyy of the decree, a companyy of the order of transmission and a certificate of partial satisfaction of the decree should be transferred to the companyrt of the Subordinate Judge at Asansol.
95 of 1945, arising out of Judgment and, Order dated January 30, 1945, of the Court of Subordinate Judge at Asansol of Zilla Burdwan in Miscellaneous Case No.
1932, and the sending of a certificate under section 41 to the High Court, the decree was never again transferred to the Asansol companyrt for execution.
No plea of jurisdiction was raised either in the grounds of appeal to the High Court or in the application f or setting aside the execution sale.
