S K BANERJEE Vs. AMBIKA PROSAD SINGH ALIAS AMBIKA SINGH
LAWS(CAL)-1961-12-6
HIGH COURT OF CALCUTTA
Decided on December 01,1961

S K BANERJEE Appellant
VERSUS
AMBIKA PROSAD SINGH ALIAS AMBIKA SINGH Respondents

JUDGEMENT

- (1.) THIS Rule originally came up before our learned brother Banerjee, J. sitting singly, on June 21, 1961, when, by his following order of that date, it was referred to the Division Bench: "the point raised in this Rule is that an order, made under Rule 47 of Chapter XXI, Part III, volume 1, of the Manual of the Court of Small Causes. Calcutta, is not revisable by way of a new trial under section 38 of the Presidency Small Cause Courts Act, 1882. The point, in my opinion, is of sufficient importance to be decided by a Division Bench of this Court. I, accordingly, refer this case to the Division Bench. " In the view, however, which we are taking, it will not be necessary to go into the broad and difficult question, formulated above, as the Rule, in our opinion, may well succeed on a shorter and simpler ground.
(2.) THE instant proceeding started on an application under Rule 47 of Chapter XXI, Part III, Volume 1, of the Manual of Court of Small Causes, Calcutta, providing for investigation of claims and objections to attachment of property. It was registered as a suit under the relevant rule [vide Rule 8 (2), Chapter VIII, Part IV, Volume II of the aforesaid Manual] and according to the prevailing practice of the Presidency Small Cause Court, Calcutta. The suit was eventually dismissed by the learned trial Judge, but, thereafter, the unsuccessful plaintiff applied before the Full Bench of the Court of Small Causes, Calcutta, under section 38 of the Presidency Small Cause Courts Act, for a new trial and the learned Judges, constituting the said Full Bench, having taken the view that the learned trial Judge had erred grievously on a material question of fact, reversed his decision and decreed the plaintiff's suit. It is the propriety of this Full Bench decision, which is challenged in this Rule. The facts, leading to the present proceeding are as follows:
(3.) THE present petitioner obtained a decree against one Ramu Singh in S. C. C. suit No, 1743 of 1958 of the Presidency Small Cause Court, Calcutta. In execution of that decree he attached an iron-safe on April 6, 1960, which was claimed by the present opposite party Ambika Prasad Singh (nephew of the judgment-debtor Ramu Singh) as his own and which was located in a room, where according to this opposite party, he was carrying on business under the name and style of Messrs. Ambika Prosad Chotelal. According to the petitioner, that business was the business of his judgment-debtor Ramu Singh, to whom the attached iron-safe belonged. The learned trial Judge, upon the evidence before him, came to the conclusion that the iron safe in question belonged to Ramu Singh and that it was in his possession at the time of the above attachment. Upon that view, he dismissed the opposite party's suit. The learned Judges of the Full Bench, on the other hand, were of the opinion that, on the evidence before the court, the iron-safe in question must be held to be the property of the opposite party and that it was in his possession on the date of the above attachment, namely, April 6, 1960, and, upon that view, they decreed the opposite party's suit.;


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