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Dharani Mohan Ray Vs. Kshitipati Ray - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1928Cal62
AppellantDharani Mohan Ray
RespondentKshitipati Ray
Excerpt:
- .....landed property is insufficient for the purpose. in the next place, it was clearly wrong for the learned subordinate judge to release the judgment-debtor on his personal security, which was absolutely ineffective. order 21, rule 40, sub-rule (3) provides that the court may release the judgment-debtor on his furnishing security, which means furnishing proper security and not the illusory security with which the learned subordinate judge has been satisfied.2. we, therefore, set aside this order and direct the judgment-debtor to surrender at once before the subordinate judge, 3rd court, hooghly, who will then consider, on proper materials being placed before him, whether he should be committed to jail or released, and if released, upon what security; the learned subordinate judge must.....
Judgment:

1. Having heard the, learned Counsel who appeared in support of the rule and the learned vakil for the judgment-debtor, we are satisfied that the order made by the Subordinate Judge on the 7th March 1927, was not in accordance with law. In the first place, there was no evidence before him on which it was possible for him to arrive at the decision that the judgment-debtor was a person, who for any 'other sufficient cause' within the meaning of Order 21, Rule 40, was unable to pay the amount of the decree. The mere statement made at the bar to the effect that he was owner of landed property is insufficient for the purpose. In the next place, it was clearly wrong for the learned Subordinate Judge to release the judgment-debtor on his personal security, which was absolutely ineffective. Order 21, Rule 40, Sub-rule (3) provides that the Court may release the judgment-debtor on his furnishing security, which means furnishing proper security and not the illusory security with which the learned Subordinate Judge has been satisfied.

2. We, therefore, set aside this order and direct the judgment-debtor to surrender at once before the Subordinate Judge, 3rd Court, Hooghly, who will then consider, on proper materials being placed before him, whether he should be committed to jail or released, and if released, upon what security; the learned Subordinate Judge must comply with the provisions of Order 21, in the matter of security. We also draw the attention of the Subordinate Judge to the mandatory provisions of Section 55, Civil P.C.

3. We may say here that the learned vakil for the judgment-debtor states that his client is willing to furnish security. The opposite party will pay the costs in this rule to the petitioner.


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