Hur Proshaud Roy v. Enayet Hossein

Special Appeal from a decree passed by the Judge of ??? affirming that of the Moonsiff of Sewa.

On the 29th of February 1868, the present defendants, in a suit against Muzhur Hossein, Euayet Hossein the present plaintiff another, obtained a decree in the Court of First Instance for the possession of certain property. Muzhur Hossein appealed first to the Judge and then to the High Court, where the decree was reversed as far as concerned the property in the hands of muzhur Hossein. The date of the High Court's order was the ??? of April 1872, Application for execution was made in August 1872, and some steps for putting the present defendant in possession were taken on the 16th of December 1872, and the execution case was struck off the file.

On the 30th of May 1873, the present plaintiff, Enayet Hossein, objected to the execution proceedings, on the ground that they had been carried on without his knowledge, and that execution had become barred by limitation. He asserted also that he still held possession, and that there had been no bond fide proceedings to put the present defendants into possession. The Moonsiff refused to entertain the application. On appeal, the District Judge held that the whole proceedings were bad, as execution of the decree had been barred in August 1872. In special appeal, this order was reversed on the ground that there were no proceedings before the Moonsiff in May 1873, in which he could make an order. The objector, Enayet Hossein, now sues to have the execution proceedings of 1872 declared invalid and inoperative, on the ground that the decree was barred by limitation. The courts below concurred in granting the decree asked for. Defendants then specially appealed to the High Court.

Baboo Aubinash Chunder Banerjee, for Appellant.

Moonshee Mahomed Yusoof, for Respondent.

The judgment of the High Court (1) is as follows:—

The special appeal rests on the grounds that the question ??? issue is one relating to the execution of a decree and cannot ??? determined in a separate suit; and that the Judge of the ??? below has erred in holding that execution of the decree was ??? by limitation.

As to the first, it is sufficient to say that the plaintiff is ??? entitled to have his complaint enquired into either in one from ??? proceeding or the other. The enquiry was originally held by the District Judge as an Appellate Court, acting under the ??? of section 11, Act XXIII of 1861. On the objection of the, ???, that enquiry was cancelled, on the ground that there ??? proceeding pending before the Moonsiff that admitted of such ??? enquiry being made. The same objection applies to any from ??? application which the plaintiffs can now make, or could at any ??? make after the execution suit was taken off the file as ??? ??? the objection is a sound one or not is a question into ??? need not stop to enquire. The appellant took it and ??? in it, and it does not lie in his mouth to say the contrary. As between the parties to this suit, there has been an ??? that the plaintiff could not proceed under section 11, section 11 does not apply to the case there is no other law takes away the plaintiff's right of suit.

??? other ground of appeal is equally unsound. The original was in form made against the three defendants collectively; of them appealed, but this appeal was dismissed on the 23rd ???. Muzhur Hossein, one of the appellants, preferred a ??? but not against the whole decree so as to give the ??? jurisdiction, under section 337, to reverse the decree ???. His appeal only related to his own 10 pie share. As to the ??? the subject of dispute and the remaining defendants, the ??? of the 23rd May 1869 was final; execution of the decree them could not have been stayed in consequence of ??? Hossein's appeal, and no question between them and the ??? was dependent on the result of Muzhur's appeal. It ??? that, though the decree was drawn up in the form of a order it did in fact incorporate in that order separate decrees Muzhur and the others, and that it did not relate to ??? which the defendants had such a common interest and a ??? defence, that the appeal by any one imperilled the whole ???. The reason for suspending the operation of the law of on during the pendency of an appeal is, that it is manifestly able to force an execution of a decree, while there exists any ??? to the rights of the decree-holder against the appellant; ??? reason dotes not apply to such a case as this, in which ??? been a final determination of rights between the ??? the present plaintiff, which could not be re-opened by ??? appeal of Muzhur Hossein. The decisions of the below are correct, and the appeal must be dismissed with ???.