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Chail Behari Lal Vs. Rahmal Das and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Judge
Reported in(1898)ILR20All38
AppellantChail Behari Lal
RespondentRahmal Das and anr.
Excerpt:
civil procedure code, sections 372, 582 - parties to an appeal--attaching creditor of decree-holder respondent seeking to be brought on to the record as a respondent. - - a case like that is provided for by section 273 of the code of civil procedure, according to which a judgment-creditor who has caused a decree to be attached may under certain circumstances himself apply for the execution of that decree and may take all the steps necessary to realize the amount of the decree attached by him......pending in this court. the applicant is a judgment-creditor of the respondent, and he caused the decree appealed against to be attached in execution of a decree held by him against the respondent. it is contended on his behalf that by reason of this attachment he has acquired an interest pending the suit and is therefore entitled to be joined as a party to the appeal under section 372. in our opinion the applicant is not a person in whose favour there has been an assignment, creation or devolution of any interest pending the appeal. it is conceded that he is not an assignee of the decree. what mr. madho prasad urges on his behalf is that an interest has been created in favour of the applicant by operation of law, that is, by the attachment which he has obtained over the decree held by.....
Judgment:

Banerji and Aikman, JJ.

1. This is an application under Section 372 of the Code of Civil Procedure, read with Section 582 of that Code, to be added as a respondent to an appeal pending in this Court. The applicant is a judgment-creditor of the respondent, and he caused the decree appealed against to be attached in execution of a decree held by him against the respondent. It is contended on his behalf that by reason of this attachment he has acquired an interest pending the suit and is therefore entitled to be joined as a party to the appeal under Section 372. In our opinion the applicant is not a person in whose favour there has been an assignment, creation or devolution of any interest pending the appeal. It is conceded that he is not an assignee of the decree. What Mr. Madho Prasad urges on his behalf is that an interest has been created in favour of the applicant by operation of law, that is, by the attachment which he has obtained over the decree held by the respondent. With this contention we are unable to agree. As stated on page 264 of Daniell's Chancery Practice, Vol. I.--'It is a general rule that no one should be made a party to an action against whom, if brought to a hearing, no order can be made.' The test therefore is whether the applicant is a person in whoso favour or against whom a decree can be made in the appeal. We think that the is not such a person. Mr. Madho Prasad relied upon the case of Wallis v. Smith 51 L.J. Eq. 577. That case in our opinion has no bearing upon the present question. That was a case in which, after decree had been obtained, the decree-holder, plaintiff, took out a garnishee order against one of the debtors of his judgment-debtor. The London and South Western Bank, which held a decree against the decree-holder plaintiff, and which had got the plaintiff's decree attached, applied to be made a party to the proceedings taken out by the plaintiff against his judgment-debtor, and that application was granted. A case like that is provided for by Section 273 of the Code of Civil Procedure, according to which a judgment-creditor who has caused a decree to be attached may under certain circumstances himself apply for the execution of that decree and may take all the steps necessary to realize the amount of the decree attached by him. That is a very different thing from holding that an attaching creditor has a right to be heard as to the merits of the decree attached by him which is sub judice in appeal. For the above reasons we refuse the application with costs.


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