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1 - 5 of 5 (0.19 seconds)Section 4 in The Partition Act, 1893 [Entire Act]
The Partition Act, 1893
The Specific Relief Act, 1963
Rajani Kanta Banerjee And Ors. vs Raj Kumari Dasi And Anr. on 30 June, 1927
19. Reference has in this connection been made to certain observations in Rajani Kanta v. Sita Kumari, 46 C. W. N. 407. A stranger purchaser had purchased a share of a family dwelling house and having been unable to obtain possession thereof instituted a suit for joint possession and obtained an ex parte decree. An order was also obtained on behalf of the decree-holder under Order 21, Rule 97, Civil P. C. At this stage a suit was filed by the other co-sharers of the dwelling house for a declaration of their title to and for permanently restraining the purchaser from obtaining khas possession by executing the decree. An attempt was made to invoke the principles contained in Section 44, T. P. Act. This Court held that as a decree had already been passed as well as an order had been obtained under Order 21, Rule 97, Civil P. C., the decree-holder could not be restrained from executing the decree. It is, further, observed that the pltfs. had an opportunity of contesting the claim of the stranger purchaser before the decree had been passed in the earlier suit. The pltfs. must be regarded as being estopped in the latter suit from asking for as injunction which would prevent the deft. from executing the decree obtained quite properly. On this ground alone the decision of the Court of appeal below had to be affirmed. There is an observation however that
"in any case however even if it be assumed that the principles of Section 44, T. P. Act might be applied in a suitable case for the purpose of preventing a stranger to the family from obtaining joint possession of a family dwelling house, the proper step for the members of the joint family to apply for an order of this nature would be at the time when a decree is made in a suit."
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