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1901 DIGILAW 62 (CAL)

Kalu Saha v. Bhagabati Debya

1901-05-23

body1901
JUDGMENT 1. The Appellant purchased the judgment-debtor's interest on a tenure prior to a decree being obtained for arrears of rent of the tenure. The judgment-debtor was the recorded tenant. The Appellant sought to have the sale of the tenure in execution of the decree set aside on the ground that the whole amount due under the decree had been satisfied by deposit in Court. The lower, Appellate Court held that the Appellant was right on the merits but that he was not the representative of the judgment-debtor within the meaning of sec. 244 (c) of the Code of Civil Procedure, and had therefore no locus standi to apply in the course of execution proceedings to have the sale set aside. 2. The learned Judge relies on the case of Kameshwar Pershad v. Run Bahadur Singh I. L. R. 12 Cal. 458 (1886); where it was held that the word "representative" means any person who succeeds to the right of any of the parties to the suit after the decree is passed. If such rights are transferred by a party to the suit before decree, and if the transferee is made a party to the suit before decree, then he comes within the words "parties to the suit." 3. That case is exactly in point, for the Appellant did not purchase the tenure after but before the decree was passed, nor was he brought upon the record so as to enable him to appear as a party to the suit. 4. In the Full Bench case of Ishan Chunder Sarkar v. Beni Madhub Sarkar 1 C. W. N. 36: s. c. I. L. R. 24 Cal. 62 F. B. (1896), it was held that the term "representative" as used in sec. 244 of the Code of Civil Procedure, when taken with reference to the judgment-debtor, does not mean only his legal representative, that is his heir, executor or administrator, but it means his representative in interest, and includes a purchaser of his interest, who, so far as his interest is concerned, is bound by the decree. 5. It has not been alleged that the landlord in the present case was bound to recognize any but the recorded tenant. The Judge says it was never urged that the Appellant was bound by the decree. 5. It has not been alleged that the landlord in the present case was bound to recognize any but the recorded tenant. The Judge says it was never urged that the Appellant was bound by the decree. He could not have forced the landlord to substitute him as a party to the suit, as a person who would be bound by the decree ordinarily can. Therefore having regard to the fact that the purchase was made before the decree was passed, and applying the criterion which has been laid down by the Full Bench, we must hold that the Appellant is not the representative of the judgment-debtor so as to enable him to proceed under sec. 244, C. P. C., whatever remedy he may have by regular suit. We must therefore, though with regret, dismiss this appeal, but as the decree-holder was not justified in bringing the property to sale after the decree had been fully satisfied, we direct that each party do pay his own costs in this Court.