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Sher Singh Vs. Sri Ram and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported in(1908)ILR30All246
AppellantSher Singh
RespondentSri Ram and anr.
Excerpt:
civil procedure code, section 266 - execution of decree--attachment--right to attach profits not yet due. - .....which would become due to him, but were not due at the time of the attachment on account of the rabi harvest of the same year. the judgment-debtor objected. his objections were overruled by the court of first instance, whose decision was affirmed by the learned district judge. the judgment-debtor comes here in second appeal. the learned advocate for the appellant confines his appeal to the question as to the right to attach the rabi profits. it support of his appeal he relies on the cases--hari das acharjia chowdhry v. baroda kishore (1899) i.l.r. 27 calc. 38 and udoy kumari ghatwalin v. hari ram shaha (1901) i.l.r. 28 calc. 483. these cases are not exactly on all fours with the present, but there are observations in the judgments which are in favour, of the appellant. reliance is.....
Judgment:

Aikman and Karamat Husein, JJ.

1. The respondents decree-holders, in execution of a money decree which they had against the appellant, applied for the attachment of the profits which were then due to him from the lambardar of the village on account of the kharif harvest of 1313 Fasli, and also for the attachment of the profits which would become due to him, but were not due at the time of the attachment on account of the rabi harvest of the same year. The judgment-debtor objected. His objections were overruled by the Court of first instance, whose decision was affirmed by the learned District Judge. The judgment-debtor comes here in second appeal. The learned advocate for the appellant confines his appeal to the question as to the right to attach the rabi profits. It support of his appeal he relies on the cases--Hari Das Acharjia Chowdhry v. Baroda Kishore (1899) I.L.R. 27 Calc. 38 and Udoy Kumari Ghatwalin v. Hari Ram Shaha (1901) I.L.R. 28 Calc. 483. These cases are not exactly on all fours with the present, but there are observations in the judgments which are in favour, of the appellant. Reliance is also placed on the decision of the Privy Council in Syud Tufuzzool Hossein Khan v. Rughoonath Pershad (1871) 14 Moo. I.A. 40. We have referred to various English authorities and these too support the appellant's contention. In the case Jones v. Thompson (1858) 27 L.J. Q.B.D. 231 it was held that the mere fact that it is most probable that there will be a debt is not sufficient. There must be an actual debt. On this principle it appears--see the case Webb v. Stenton (1888) 11 Q.B.D. 518--that the English Judges refuse to make orders attaching rent before it becomes due. In the case of the rabi profits here it is quite clear that there was no existing debt, there was a mere possibility that there might be money due to the judgment-debtor for profits when the accounts for the rabi harvest were made up. In our opinion this possible right of the judgment-debtor was not liable to attachment having regard to the provisions of Section 266 of the Code of Civil Procedure. Reference was made in the course of the argument to attachment of salaries not yet due, but for these special provision is made in the section. We allow the appeal so far as it relates to the attachment of the profits of the rabi harvest of 1313 Fasli, and we set aside the attachment of the right to recover those profits. In other respects the appeal fails. Having regard to the result, we direct that the parties bear their own costs here and in the Courts below.


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