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Johari Mal and anr. Vs. Sant Lal and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad High Court
Decided On
Judge
Reported in(1887)ILR9All484
AppellantJohari Mal and anr.
RespondentSant Lal and ors.
Excerpt:
execution of decree - decree for sale of hypothecated property and against judgment--debtor personally--execution against judgment-debtor's person-decree--holder entitled to proceed against property or person as he might think fit. - - i am also told by my brother mahmood, who was present in that case, that, to the best of his recollection, the construction i have put on that case is the right one. 'the decree-holder was entitled to enforce his decree against the person or the property of the judgment-debtor, whichever he thought best;.....is that when a creditor has got a decree against the person of his debtor and against the debtor's property, he is bound to go against the property before seeking his remedy against the person. in support of this there is a case-wali muhammad v. turab ali i. l. r., 4 all., 497, which has been cited. on looking at that case it is obvious that the learned judges there were forced to exercise an equitable jurisdiction in order to prevent a fraud being perpetrated on the judgment-debtor. i am also told by my brother mahmood, who was present in that case, that, to the best of his recollection, the construction i have put on that case is the right one. it is a pity that the facts are not fully reported, but it is reported fully enough to draw this conclusion. no such fraud arises.....
Judgment:

John Edge, Kt., C.J.

1. In this case the decree-holders Obtained a decree against the hypothecated property and against the defendants personally. They applied for execution of the decree against the judgment-debtors, and an order was made in accordance with the application. This order is now the subject of this appeal. It is contended that there is a principle of equity which applied, The alleged principle is that when a creditor has got a decree against the person of his debtor and against the debtor's property, he is bound to go against the property before seeking his remedy against the person. In support of this there is a case-Wali Muhammad v. Turab Ali I. L. R., 4 All., 497, which has been cited. On looking at that case it is obvious that the learned Judges there were forced to exercise an equitable jurisdiction in order to prevent a fraud being perpetrated on the judgment-debtor. I am also told by my brother MAHMOOD, who was present in that case, that, to the best of his recollection, the construction I have put on that case is the right one. It is a pity that the facts are not fully reported, but it is reported fully enough to draw this conclusion. No such fraud arises here. ' The decree-holder was entitled to enforce his decree against the person or the property of the judgment-debtor, whichever he thought best;

2. This appeal is dismissed.

Mahmood, J.

3. I agree.


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