Decided on August 04,1970



- (1.) THIS appeal is by one of the defendants No. 7, Krishna Chandra Santra, against a money decree passed by the Subordinate Judge First Court, Hooghly in favour of the plaintiff.
(2.) THE plaintiff, Sm. Tarak Dasi, filed a suit for recovery of money amounting to Rs. 15. 129. 15. 11 against several defendants Nos. 1-8 including the present appellant, the defendant No. 7. Her case, briefly, is that one Purna Chandra Das obtained a consent decree No. 265 dated 17th June, 1925 for Rs. 7,000/- against one Gunamoni Santra, father of defendants Nos. 1-5 and one Kangali Charan since deceased the husband of defendant No. 6, in the court of French Chandernagore. Subsequently by a notarial transfer deed No. 110 dated 9th May, 1942 Purna Das transferred that decree to one Sm. Purnabala Dassi on a recital inter alia that one Sidheswar Santra, the brother of Gunamoni the defendant No. 1 and Kangali Charan were jointly liable for the debt. Purnabala filed a suit against Gunamoni and wife of Kangali-the defendant No. 6 and the defendant No. 7 who is a son of Sidheswar Santra for the amount of interest payable on. the principal under the French Law and obta'ned a decree for Rs. 1,680/-against Gunamoni and defendant No. 6 but the name of defendant No. 7 was expunged as he was found not liable. Purnabala then filed another suit against Krishna Chandra, the defendant no. 7, in 1946 for a declaration that he and his brother Palai-the defendant No. 8 were jointly liable with Gunamoni and Kangali or their heirs and legal representatives for the debt under the consent decree and the; decree of 1945 for interest and obtained a decree No. 62 dated 11th May, 1946 against them.
(3.) THEREAFTER, Purnabala by two notarial deeds Nos. 222 and 223 transferred her rights under the consent decree and also the decree of 1945 and 1946 to the plaintiff on 28th July, 1947. In these two documents the defendant No. 7 was also a consenting party and acknowledged the joint debt along with the other debtors and agreed that the debtors would pay off the existing debt within 5 years with interest at the rate of 8 per cent per annum. As the defendants failed to pay the plaintiff started a money execution case No. 23 of 1953 in the court of the Subordinate Judge of Chanclernagore on 23rd March, 1953 for realisation of the dues under two notarial deeds. The defendant No. 7 raised an objection under Section 47 of the Code of Civil Procedure against the executab lity of the two documents without recourse to suit. This objection was upheld and accordingly, the present suit has been instituted by her.;

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