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Chena Pemaji Vs. Ghelabhai Narandas - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Judge
Reported in(1883)ILR7Bom301
AppellantChena Pemaji
RespondentGhelabhai Narandas
Excerpt:
.....for appointment of certain individual as arbitrator had become infructuous because of his demise held, high court of bombay, is not correct in rejecting arbitration petition filed by appellant on ground of lack of jurisdiction. - when the present appeal was presented, we were satisfied that the judgment-debtor was keeping out of the way to avoid service, and we, therefore, directed substituted service of the notice to appear......of property had been issued. the decree was passed in 1878, and under it the judgment-creditor claims more than rs. 6,000, but has never been able to recover more than rs. 301. on the 1st october, 1880, the judgment-debtor asked for a month's time to enable him to raise money by sale or mortgage, and pay off the debt, and three months were granted him for that purpose; but he appears to have taken no steps to raise the necessary funds. when the present appeal was presented, we were satisfied that the judgment-debtor was keeping out of the way to avoid service, and we, therefore, directed substituted service of the notice to appear. the judgment-debtor has not appeared to-day either in person or by pleader. he seems to be determined to evade, if possible, payment of his debt and.....
Judgment:

Melvill, J.

1. Section 230 of Act X of 1877 leaves it to the discretion of the Court executing a decree to refuse execution at the same time against the person and property of the judgment-debtor; but the law appears to allow an appeal against such an order of refusal, and we are, therefore, bound to consider whether the lower Court's discretion has been properly exercised. In the present case we are of opinion that the lower Court was not justified in refusing a warrant of arrest) for no other reason than because a warrant for attachment of property had been issued. The decree was passed in 1878, and under it the judgment-creditor claims more than Rs. 6,000, but has never been able to recover more than Rs. 301. On the 1st October, 1880, the judgment-debtor asked for a month's time to enable him to raise money by sale or mortgage, and pay off the debt, and three months were granted him for that purpose; but he appears to have taken no steps to raise the necessary funds. When the present appeal was presented, we were satisfied that the judgment-debtor was keeping out of the way to avoid service, and we, therefore, directed substituted service of the notice to appear. The judgment-debtor has not appeared to-day either in person or by pleader. He seems to be determined to evade, if possible, payment of his debt and under these circumstances we think that the creditor has a right to all the assistance which the law can give him. We, therefore, reverse the order of the Subordinate Judge with costs, and direct that a warrant be issued for the arrest of the judgment-debtor Ghelabhai Narandas.


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