SHANTI DEVI MEHRA S Vs. GYAN PRAKASH MEHRA RESPONDENT
LAWS(CAL)-1970-11-13
HIGH COURT OF CALCUTTA
Decided on November 17,1970

SHANTI DEVI MEHRA S Appellant
VERSUS
GYAN PRAKASH MEHRA Respondents

JUDGEMENT

- (1.) THE short point involved in this appeal is whether the trial court as the executing Court, could make an order appointing the Official Receiver as the Receiver to sell a property, which was the subjectmatter of a partition suit in place and stead of a person, who by the terms of the consent decree in that suit, was directed to sell the property. It was argued on behalf of the appellants that the decree was a consent decree and the appointment of the Official heceiver to sell the property, was a variation of the decree, which could not be done. Secondly it was argued that the executing Court cuold not go behind the decree and alter its terms by appointing the Official Receiver to sell the property in place of a persona designata, who under the terms of the decree was to sell the property.
(2.) IN order to appreciate the appellants' contention it is necessary to briefly state the facts involved in this appeal. On July 14, 1959, the respondent filed a suit against one Kul prakash Mehra for a declaration that the respondent was a joint owner, having half share, in premises No. 31, Mission Row Extension (now re-numbered No. 10, Ganesh Chandra Avenue), Calcutta, for a decree for partition and for sale of the premises and for other reliefs. In this suit a decree by consent was passed on September 12, 1962, by which the respondent was declared the joint owner of the said premises along with the said Kul Prakash Mehra each having 8 annas share. This decree provided that the premises would be sold after expiry of two years from the date of the decree and that Talbot and Co. would make a valuation for the purpose of sale. It was also provided that the property would be auctioned between the parties only, at the first instance, by one Fateh Chand Dhingra of No. 31, Mission Row Extension, and if the reserve price fixed by Talbot and Co. was reached in the auction, the higher bidder would purchase it. But if the reserve price was not reached the property would be put to public auction by the same person. In either case after meeting the costs, charges and expenses the purchase price was to be divided between the parties in equal shares. There were certain other provisions in the consent decree, to which it is not necessary to refer for the purpose of this appeal.
(3.) KUL Prakash Mehra the defendant in the suit died on July 19, 1967, and thereafter the appellants, who are the widow, sons and daughters of the deceased, were brought on the records of the execution proceedings as the heirs and legal representatives of the. deceased,;


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