ABDUL RAHAMAN HAJI HOSSEIN Vs. GOURHARI GHOSE

JUDGEMENT

(1.) This is an appeal by the decree-holder against a decision of the District Judge of Howrah, dated the 8 August 1921 On the 11 December 1922 a decree was passed on the Original Side of this Court for a sum of Rs. 3,685 against the respondent in this appeal, Gourhari Ghose. The decree was passed ex parte. In the title suit in which the decree was passed Gourhari is described as the sole surviving partner of the Firm of Rasiklal Ghose-Kanyalal Ghose carrying on business at the address there stated and the decree was passed against Gourhari in this capacity. On the 5 Jane 1923 the decree was transmitted to Howrah for execution. Proceedings for attachment of the moveable properties of the judgment-debtor were taken by the decree-holder but this proved infructuous, Accordingly, on the 13 May 1924. the decree-holder applied to execute the decree against the immoveable properties of Gourhari, On the 17 June 1924 a petition of objection was preferred on behalf of Gourhari against the execution of the decree. It was alleged that it was a void debt and that Gourhari was a minor at the time the decree was passed. The learned Judge in the Court below has given effect to this contention and has held that as the judgment-debtor was a minor and as the attached properties were exempted under Section 247 of the Indian Contract Act they should be released from attachment and the decree-holder was given time until the 27th August 1924 within which to take steps. No steps were taken and on the 27 August 1924 the execution case was dismissed for default.

(2.) Two preliminary objections have been taken The first is that there is no appeal, it was sought to show that this was a claim case and we were referred to various orders in support of this This contention is clearly untenable and although the application may have been wrongly headed it clearly was not a claim case. Then it is said that by reason of the dismissal of the execution case no appeal from the order of the 8 August 1924 lay. This contention is, we think, unsound. At the time the order appealed against was passed the execution case was still pending and had not been dismissed and accordingly, we think tint both the preliminary objections must form The order of the 8 August 1924 is attacked by the appellant on the ground that it was not open to the Executing Court to go into the question as to whether Gourhari was a minor or not and it is said that as the decree was passed against him as a major the Executing Court was bound to execute the decree on this basis and that if in fact Gourhari was a minor it was open to him to apply on the Original Side to have the decree of the 11 December 1922 set aside. It is further urged that the learned District Judge has held that Gourhari was a minor on evidence which is inadmissible, namely, the horoscope. So far as the second point, is concerned there does not seem to us any substance in this. It may be that the horoscope was no evidence bur, the mother of the boy herself gave evidence and although her evidence may have been somewhat conflicting there was some evidence before the Judge which he might accept on the question. But we do not think that it was open to the Executing Court to go into the question. After all the decree was passed against Gourhari as a major and it was not open, to the Executing Court to go behind the decree and decide any question of minority and we agree with the contention of the appellant that the proper Court to deal with any question of this kind was the Court who passed the decree of the 11 December 1922. We, therefore, hold that the decision of the District Judge with regard to the minority of Gourhari cannot stand. See the case of Kalipada Sirkar V/s. Harimohan Dalai 35 Ind. Cas. 856; C. W. N. 1104; 24 C. L. J. 375 : 44 C. 627.

(3.) We accordingly, set aside the order of the District Judge of the 8 August 1924 and we direct the District Judge to proceed with the application for execution.