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Ashiq Ali Vs. Moti Lal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported in(1907)ILR29All466
AppellantAshiq Ali
RespondentMoti Lal
Excerpt:
civil procedure code, section 336 - insolvency--security for filing application by judgment-debtor to be declared insolvent. - - the decree-holder contends that, even assuming that the decision complained of is wrong, this court ought not to interfere in revision......on the 16th of april 1906. on the 19th of april the decree-holder applied to the court that the money deposited by syed ashiq ali should be paid to him. the court made an order on the 21st of april refusing this application on the ground that the security was only given to secure the appearance of the judgment-debtor. the learned judge had evidently in his mind the provisions of section 336 of the code of civil procedure, which provides that when a judgment-debtor is arrested the court is to release him if he furnishes security that he will appear when called upon and will within one month apply to be declared insolvent. on the 24th of april the decree-holder made a fresh application that the money should be paid to him and on the 24th-of may 1906, notwithstanding the order of the.....
Judgment:

Richard, J.

1. A decree was obtained against one Aziz, In execution of that decree Aziz, the judgment-debtor, was arrested. After some time Syed Ashiq Ali deposited a sum of money as security in Court. The terms of security were that if an application which was to be made by Aziz within a time specified to be declared insolvent was rejected on any ground whatever, the amount deposited would be paid to the decree-holder. Aziz duly made his application to be declared insolvent. Before any order could be made Aziz, the judgment-debtor, died on the 16th of April 1906. On the 19th of April the decree-holder applied to the Court that the money deposited by Syed Ashiq Ali should be paid to him. The Court made an order on the 21st of April refusing this application on the ground that the security was only given to secure the appearance of the judgment-debtor. The learned Judge had evidently in his mind the provisions of Section 336 of the Code of Civil Procedure, which provides that when a judgment-debtor is arrested the Court is to release him if he furnishes security that he will appear when called upon and will within one month apply to be declared insolvent. On the 24th of April the decree-holder made a fresh application that the money should be paid to him and on the 24th-of May 1906, notwithstanding the order of the 21st April 1906, the Court ordered that the amount deposited by Syed Ashiq AH be paid over to the decree-holder. This is the order which the applicant now asks to set aside in revision. The security which was furnished was not in strict accordance with the provisions of Section 336. The security went so far as to undertake that if the application of the judgment-debtor to be declared insolvent was rejected, on any ground whatever, the money should be paid to the decree-holder, It seems to me that on the merits the decree-holder, was not entitled to get this money. The application of the judgment-debtor was never rejected. His death rendered an order under Section 351 of the Code of Civil Procedure impossible, and even assuming that the security was bound to the full extent of his undertaking when he deposited the money, in ray judgment, the Court ought to have given back to him the money deposited after the death of the judgment-debtor. The decree-holder contends that, even assuming that the decision complained of is wrong, this Court ought not to interfere in revision. This contention is met by the applicant by pointing out that so long as the order of the 21st of April stands, the lower Court had no jurisdiction whatever to make the order of the 24th of May 1906. Under all the circumstances I think that this is a case which I should entertain in revision. As I do entertain it, I think on the general merits Syed Ashiq Ali is entitled to the money deposited in Court. In an exactly similar is case--Krishnan Nayar v. Ittinan Nayar (1901) I.L.R., 24 Mad., 637 it was held that where the judgment-debtor died before the expiration of the time granted for making an application for insolvency, the security was released. I allow the application and set aside the order of the 24th of May 1906. I make no order as to cost.


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