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Surjan Kunwari Vs. Shantanand Gir and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad
Decided On
Reported inAIR1929All905a; 118Ind.Cas.191
AppellantSurjan Kunwari
RespondentShantanand Gir and anr.
Excerpt:
.....satisfied that there can be no possible doubt but that, in furnishing the security and thus remaining in possession of the property and profits for a considerable further period herself, the rani was well aware that she was giving security and did give such security for all claims that the decree-holder might have, to the extent of that security, for any amounts payable to him under the decree. 6. for the reasons that we have given above we are satisfied that the order of the lower court, from which this appeal has been filed, was right, and we dismiss the appeal with costs......up possession of the property and contends that as by the decree nothing was given to the decree-holder in the nature of future mesne profits subsequent to the date of suit, the security deposited by her was not liable to sale at the instance of the decree-holder.2. the subordinate judge has rejected this objection and we think rightly. we have had the various orders, applications and affidavits relating to this question of security put before us in great detail and at great length. taking isolated sentences here and there it is possible, as the learned subordinate judge says, to find some support for the contentions of either party, but after very full consideration of the whole history of the matter we are satisfied that there can be no possible doubt but that, in furnishing.....
Judgment:

1. The earlier history of this case is complicated in its facts, but the matter that we have to decide is really comparatively simple. The appeal arises out of an application for execution. Mahant Shantanand obtained a decree against Mahant Basudevanand. Basudevanand appealed and when he applied for stay of execution, stay was granted upon the furnishing of security bonds to the amount of Rs. 10,000 and security furnished by Rani Surjan Kunwari (who was not a party to the suit) in the shape of two fixed deposit receipts for Rs. 10,000 each. Mahant Shantanand has now applied for attachment of these two fixed deposit receipts and asked that out of the proceeds he should be paid some eight separate items. Of these items six arise out of the decree itself, and the Subordinate Judge has accepted them. A seventh item was for future mesne profits with the interest arising therefrom. The Subordinate Judge has not allowed these two items on the ground that no future mesne profits were decreed. With these last two items we are not directly concerned. The present application is one by Rani Surjan Kunwari who urges that the learned Subordinate Judge was wrong in holding that the fixed deposit receipts deposited by her were liable to meet the six items to which we have referred. Her contention is that the security deposited by her related to certain property of which she was in possession under a lease, and to the profits accruing subsequent to a particular date from that property, and to those two items only. She has delivered up possession of the property and contends that as by the decree nothing was given to the decree-holder in the nature of future mesne profits subsequent to the date of suit, the security deposited by her was not liable to sale at the instance of the decree-holder.

2. The Subordinate Judge has rejected this objection and we think rightly. We have had the various orders, applications and affidavits relating to this question of security put before us in great detail and at great length. Taking isolated sentences here and there it is possible, as the learned Subordinate Judge says, to find some support for the contentions of either party, but after very full consideration of the whole history of the matter we are satisfied that there can be no possible doubt but that, in furnishing the security and thus remaining in possession of the property and profits for a considerable further period herself, the Rani was well aware that she was giving security and did give such security for all claims that the decree-holder might have, to the extent of that security, for any amounts payable to him under the decree.

3. Of the six amounts to which we have referred, one of them was a sum of Rs. 1270-8-0 due to the Secretary of State in the matter of court-fees the suit having been filed in forma pauperis. The Secretary of State applied through his counsel in execution against the judgment-debtor for the payment of Rs. 1348, the sum of Rs. 1270-8-0 which we have already mentioned and presumably a further amount for further costs. The learned Subordinate Judge gave notice to both parties. The decree-holder stated before the Subordinate Judge: vide the order of the latter dated 30th April, 1929, that:

it was a mistake on his part to have included in his own dues the money which was really payable by the judgment-debtor to the Secretary of State for India in Council.

4. We do not think that the admission by the decree-holder was a correct statement of the situation. The money was not primarily payable by the judgment-debtor. It is primarily payable by the decree-holder; but the decree-holder is entitled to recover it from the judgment-debtor. He was, therefore, right in asking for this sum provided that he was able to state either that he had already paid the sum to the Secretary of State, or was prepared to assure the Court that money would be paid to the Secretary of State. We think, therefore, that the procedure for the Subordinate Judge in this case was to allow the item but not to pay it over to the decree-holder who had not given him any assurance that the Secretary of State had been paid. Having realized the amount the Subordinate Judge should pay it over direct to the Secretary of State.

5. It will be noted that the amount stated in the application of the decree-holder for execution is Rs. 1270-8-0 and in the present proceeding no larger amount than that can be retained by the Subordinate Judge and paid over to the Secretary of State. If the Secretary of State desire to press his claim for the balance of Rs. 77-8-0 he will be entitled in the ordinary way to obtain it from the decree-holder, and the decree-holder will be entitled to recoup himself by any subsequent proceeding against the judgment-debtor.

6. For the reasons that we have given above we are satisfied that the order of the lower Court, from which this appeal has been filed, was right, and we dismiss the appeal with costs.


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