PULIN BEHARI SIL AND ANOTHER Vs. NARENDRA KUMAR PAUL
LAWS(GAU)-1970-11-13
HIGH COURT OF GAUHATI
Decided on November 19,1970

Pulin Behari Sil And Another Appellant
VERSUS
NARENDRA KUMAR PAUL Respondents

JUDGEMENT

R.S. Bindra, J. - (1.) This second appeal raises the question about the true interpretation of Sec. 306 of Indian Succession Act.
(2.) The facts culminating in this second appeal are that Narendra Kumar Paul filed a suit in the year 1945 against Prasanna Kumar Sil claiming damages arising allegedly out of his malicious prosecution by the latter. The suit was dismissed by the trial Court on 28 -2 -1959. Narendra Kumar Paul filed an appeal in the Court of the Subordinate Judge, Tripura, Agartala, against the decree of dismissal. His appeal was accepted and the suit decreed in a certain sum. Prasanna Kumar Sil then lodged a second appeal in this Court against the decree of the first appellate Court. Before that appeal could be heard on merits, Prasanna Kumar Sil died and since his representatives were not brought on the record within time, the appeal was dismissed on 24 -8 -1967.
(3.) Narendra Kumar Paul then sued out execution on 17 -5 -1968 against the legal representatives of the deceased judgment debtor. The legal representatives raised an objection in the executing Court that since due to death of Prasanna Kumar Sil the second appeal had abated, it was not open to Narendra kumar Paul to claim execution of the decree which he had secured from the first appellate Court. Narendra Kumar Paul controverted that contention of the legal representatives on the score that the decree of the first appellate Court having not been set aside by any superior Court, he was entitled in law to claim the decretal amount from the legal representatives of the deceased. The objection raised by the legal representatives prevailed in the executing Court and so the latter rejected the execution application on the finding that in view of the death of Prasanna Kumar Sil before the second appeal could be decided on merits, the cause of action could not have survived.;


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