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The Delhi and London Bank Vs. the Uncovenanted Service Bank, Bareilly - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Judge
Reported in(1888)ILR10All35
AppellantThe Delhi and London Bank
RespondentThe Uncovenanted Service Bank, Bareilly
Excerpt:
execution of decree - sale in execution--rateable distribution among decree-holders--civil procedure code, section 295--' decrees for money'--'same judgment-debtor'--decree for enforcement of lien and against judgment--debtor personally--decree-holder entitled to proceed against property or person as he may think fit. - - 9. a precisely similar question was decided by shumbhoo nath poddar v......procedure. we express no opinion as to whether they were or were not as against the other judgment-debtors decrees for money within the meaning of that section that is a question which we need not decide here, as it is not necessary for the decision of this appeal.8. the remaining question is whether the fact that there are four judgment-debtors in the plaintiffs' decrees and only three judgment-debtors in the defendants' decrees would deprive the plaintiffs of their right to share rateably.9. a precisely similar question was decided by shumbhoo nath poddar v. lucky nath dey i. l. r., 9 cal., 920. i agree with that decision, and am of opinion that the plaintiffs are entitled to share rateably in the proceeds of the defendants' decrees. the case of deboki nundun sen v. hart i. l. r., 12.....
Judgment:

John Edge, Kt., C.J.

1. In this action the plaintiffs claim under Section 295 of the Civil Procedure Code to share rateably in the proceeds of a sale effected in the execution of decrees of the defendants. The facts are shortly these: On the 9th August 1884, the defendants obtained two money decrees against Balmukand, Ram Sarup, and Piare Lal. On the 19th January 1885, the plaintiffs obtained two decrees against the same persons and one Rao Sahib Singh.

2. The defendants obtained an attachment under their decrees against the property of Balmukand and obtained an order that the property should be brought to sale on the 20th April 1885. On the 10th April 1885, the plaintiffs applied for an attachment under their decrees against the property of Balmukand, and on the 16th April following they applied for an order to enable them to share rateably in the proceeds of the defendants' execution.

3. The Subordinate Judge decreed the plaintiffs' claim. On appeal the District Judge of Bareilly dismissed the plaintiffs' suit. From that dismissal the present appeal is brought. The decrees of the plaintiffs, obtained on the 19th January 1885, did not specifically decree that any property of Balmukand should be brought to sale. It is not necessary to consider the nature of those decrees as affecting the other judgment-debtors or their property, further than to say that the plaintiffs could have executed, if they had chosen, their decrees against the property of the other people affected directly by the decrees, that is to say, against the property of other judgment-debtors specifically ordered to be sold by those decrees.

4. On behalf of the defendants it has been contended that the decrees in question of the plaintiffs were not decrees for money within the meaning of Section 295 of the Civil Procedure Code, even against Balmukand, because under them the lien of the plaintiffs could have been enforced against the judgment-debtors other than Balmukand.

5. It was also contended that the decrees in question were not against the same judgment-debtor, because there was a fourth judgment-debtor, Rao Sahib Singh, affected by the plaintiffs' decrees, who was not affected by the decrees of the defendants.

6. It was also contended that the plaintiffs were bound in law before having recourse against the property of Balmukand to proceed against the hypothecated property of the other judgment-debtors. It was also urged on behalf of the defendants that the plaintiffs sold and purchased some of the property of the other judgment-debtors decreed to be sold by their decrees. The latter point is one as to which there has been no evidence brought to our attention. Apparently there is no evidence as to when or for what amount, whether reasonable or otherwise, these alleged sales and purchases took place. In fact, we have got no information on which we can act as to the sales. The question was not raised in the written statement, and is one which, even if there had been any evidence in support of it, would merely relate to the amount in respect of which the plaintiffs could claim to share rateably. In support of the contention that the plaintiffs were bound in law to have recourse first to the property of the other judgment-debtors directed to be sold under their decrees, the defendants rely on the case of Wali Muhammad v. Turab Ali I. L. R., 4 All., 497, decided by my brother Mahmood and Mr. Justice Straight. We need not discuss that case. It has no bearing on this case. We have in Johari Mal v. Sant Lal I. L. R., 9 All., 484, explained that case. It was obviously one of fraud, which required the interference of the equitable jurisdiction of this Court.

7. No question of fraud arises in this case; therefore there is nothing in law or in equity to prevent the plaintiffs from enforcing their decrees in the first instance against the property of Balmukand. It is obvious that as far as Balmukand was concerned the plaintiffs' decrees were money-decrees. Those decrees did not lose their character as money-decrees against Balmukand because by them a sale of the property of the other judgment-debtors was decreed. We are of opinion that the plaintiffs' decrees, so far as Balmukand was concerned, were decrees for money within the meaning of Section 295 of the Code of Civil Procedure. We express no opinion as to whether they were or were not as against the other judgment-debtors decrees for money within the meaning of that Section That is a question which we need not decide here, as it is not necessary for the decision of this appeal.

8. The remaining question is whether the fact that there are four judgment-debtors in the plaintiffs' decrees and only three judgment-debtors in the defendants' decrees would deprive the plaintiffs of their right to share rateably.

9. A precisely similar question was decided by Shumbhoo Nath Poddar v. Lucky Nath Dey I. L. R., 9 Cal., 920. I agree with that decision, and am of opinion that the plaintiffs are entitled to share rateably in the proceeds of the defendants' decrees. The case of Deboki Nundun Sen v. Hart I. L. R., 12 Cal., 298, is not in point and does not conflict with the view of the law which I have expressed. That was a case, to put it shortly, in which the property sold was the joint property of two judgment-debtors, whereas the decree in respect of which the right to claim rateably was made, was a decree against one of the judgment-debtors only. The case of Jagat Narain Pal v. Dhundhey Rai I. L. R., 5 All., 566, has been pressed upon us. The facts there are not similar to those of this case, consequently that case does not affect our judgment in this.

10. The case of Hart v. Tara Prasanna Mukerji I. L. R., 11 Cal., 718, has been relied on by each side. We do not think that, looking at the facts of the case, it is in point. In the result the appeal must be allowed with costs. The decree of the Lower Appellate Court is set aside and the case remanded under Section 562 of the Civil Procedure Code, to be disposed of by the Judge of Bareilly with reference to the observations made in this judgment. The costs will abide the result.

Mahmood, J.

11. I concur.


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