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Amolakchand Vs. Bhagwan Das - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1927All830
AppellantAmolakchand
RespondentBhagwan Das
Cases ReferredKirtee Chunder Mitter v. Struthers
Excerpt:
- - amolak chand objected to the application for execution on the ground that, in view of the composition referred to above, the decree must be deemed to have been satisfied in its entirety, and was not capable of execution. in my judgment the decision of the lower appellate court is perfectly correct and ought to be affirmed......of a certain amount of money against munna lal and his three sons radhe lal, brij mohan and amolak chand. amolak chand is the appellant in the present appeal. munna lal, radhe lal and brij mohan were adjudicated insolvents during the pendency of the suit, and the official receiver, in whom the estate of the above mentioned insolvents had vested, was made a party to the suit. it appears that an objection based on section 29, provincial insolvency act, was taken before the court trying the suit but the objection was overruled and the court observed in the course of its judgment thatof course the plaintiff will take his decree to the insolvency court and get rateable distribution from the assets of the insolvents along with other creditors.2. a decree for a certain amount was passed.....
Judgment:

Iqbal Ahmad, J.

1. This is a judgment-debtor's appeal and arises under the following circumstances: A suit was brought by the decree-holder respondent for recovery of a certain amount of money against Munna Lal and his three sons Radhe Lal, Brij Mohan and Amolak Chand. Amolak Chand is the appellant in the present appeal. Munna Lal, Radhe Lal and Brij Mohan were adjudicated insolvents during the pendency of the suit, and the official receiver, in whom the estate of the above mentioned insolvents had vested, was made a party to the suit. It appears that an objection based on Section 29, Provincial Insolvency Act, was taken before the Court trying the suit but the objection was overruled and the Court observed in the course of its judgment that

of course the plaintiff will take his decree to the insolvency Court and get rateable distribution from the assets of the insolvents along with other creditors.

2. A decree for a certain amount was passed against all the defendants. After being armed with the decree the decree-holder applied in the insolvency Court to be included in the schedule of creditors with respect to the full decretal amount and his application was allowed. Thereafter the insolvents made a composition with some, if not all, of the scheduled creditors including the decree-holder. By that composition the decree-holder agreed to accept from the insolvents a sum of Rs. 355-14-0 in lieu of the decretal amount 'due from them. Notwithstanding the composition referred to above, the decree-holder applied for the execution of the decree against Amolak Chand, appellant, and prayed for the recovery of the whole of the decretal amount due from him. Amolak Chand objected to the application for execution on the ground that, in view of the composition referred to above, the decree must be deemed to have been satisfied in its entirety, and was not capable of execution. This objection was given effect to by the learned Munsif but was overruled by the lower appellate Court.

3. It appears that at the time that the decree-holder filed his application for execution he had not realized, any amount in pursuance of the composition referred to above. In my judgment the decision of the lower appellate court is perfectly correct and ought to be affirmed. The decree held by the decree-holder was a joint decree against Munna Lal and his sons. The decree-holder was entitled to realize the entire decretal amount from any one of the judgment-debtors. The release of any one of the judgment-debtors by the decree-holder could not absolve the remaining judgment-debtors from their liability under the decree. The composition is, in view of the provisions of Section 39, Provincial Insolvency Act, undoubtedly binding on the decree-holder, but the benefit of that composition can only be taken by the insolvents and not by persons who were no party to that composition. The insolvents have by the composition been relieved of their liability under the decree, but Amolak Chand not being a party to the composition, still remains liable to the decree-holder for such portion of the decretal amount as has not already been realized by the decree-holder in pursuance of the composition referred to above. The view I take is in consonance with the view taken in the case of Kirtee Chunder Mitter v. Struthers [1879] 4 Cal. 336. It is to be noted that by the composition the decree-holder never undertook to exonerate Amolak Chand from his liability under the decree.

4. For the reasons given above, while dismissing the appeal, I must point out to the execution Court that Amolak Chand is liable only for such portion of the decretal amount as has not already been realized by the decree-holder in pursuance of the above mentioned composition. The respondent is entitled to his costs of the appeal.


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