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Jogemaya Dassi Vs. Baidyanath Pramanick - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata
Decided On
Judge
Reported inAIR1919Cal258(2),(1919)ILR46Cal245
AppellantJogemaya Dassi
RespondentBaidyanath Pramanick
Cases ReferredJaiparkash Narain Singh v. Basanta Kumari Debi
Excerpt:
mortgage - attachment--civil procedure code (act v of 1908) order xxxviii, rule 5. - .....defendants the sum of rs. 6,000 and the defendants thereupon deposited the title deeds of no. 3, jebb's lane in this city to secure the sum advanced and interest thereon at 6 per cent, per annum. the defendants agreed to repay the advance together with interest thereon at the rate aforesaid within 6 months from the date of the advance; default was made by the defendants in repaying the advance and, on the 21st november 1914, the plaintiff commenced a suit to recover the money advanced together with interest thereon. on the 28th may 1917 a preliminary mortgage decree was passed in the suit declaring that the plaintiff was entitled to a charge for the sum advanced on 4/3 of no. 3, jebb's lane, and the registrar was directed to take the usual mortgage account and liberty was given to the.....
Judgment:

Greaves, J.

1. This is an application by the plaintiff for the attachment of certain properties of the defendants. On the 2nd May last, I granted a Rule calling on the defendants to show cause why these properties should not be attached and the Rule now comes on for hearing. On the 28th September 1913 the plaintiff advanced to the defendants the sum of Rs. 6,000 and the defendants thereupon deposited the title deeds of No. 3, Jebb's Lane in this city to secure the sum advanced and interest thereon at 6 per cent, per annum. The defendants agreed to repay the advance together with interest thereon at the rate aforesaid within 6 months from the date of the advance; default was made by the defendants in repaying the advance and, on the 21st November 1914, the plaintiff commenced a suit to recover the money advanced together with interest thereon. On the 28th May 1917 a preliminary mortgage decree was passed in the suit declaring that the plaintiff was entitled to a charge for the sum advanced on 4/3 of No. 3, Jebb'S Lane, and the Registrar was directed to take the usual mortgage account and liberty was given to the plaintiff to apply for a personal decree if the money to arise from a sale was insufficient to pay the amount charged on the property. The Registrar reported on the 21st November 1917 and found that there would be due to the plaintiff: on the 11th June 1918 a sum of Rs. 7.696 in respect of the said advance and appointed the 12th June 1918 as the date for the payment into Court by the defendants of the sum of Rs. 7,696 and costs. The premises No. 3, Jebb's Lane formed part of the estate of one Behari Lal Pramanick and this estate was partitioned in suit No. 698 of 1907, and by the return of the Commissioner of Partition appointed in the said suit which was dated the 19th March 1915 and which was confirmed by an order made in the said suit on the 20th June 1916, No. 3, Jebb's Lane was allotted to the defendant Bissonath together with other property and various allotments were made to the other defendants. There are various prior mortgages on No. 3, Jebb's Lane and I am satisfied upon the evidence that upon the realisation of these premises and of other premises rendered liable to the plaintiff's mortgage by virtue of the partition decree, the sum realised will not be nearly sufficient to satisfy the 'plaintiff's mortgage and that she will ultimately, after realisation of the mortgage premises, have to apply for a personal decree against the defendants. I need hot refer in detail to the figures which are set forth in the petition and which are not really challenged; indeed it appears from the defendant Bissonath's affidavit that the plaintiff has understated the amounts due on the prior mortgages. Under these circumstances the application is made as the defendants are alleged to be about to dispose of their sole remaining assets, or, 1 should rather say, realise them by sale with intent to defeat and delay any personal decree that may be passed against them. This is denied, but I think I must hold upon the evidence that the defendants are trying to dispose of their sole remaining assets, although there is really no evidence apart from such inference as I may draw from the circumstances that the object is to defeat and delay creditors.

2. Now it is well settled by authorities of this Court, which are binding upon me, that until the mortgaged properties are brought to sale, no personal decree can be obtained against the defendants, and it is said on behalf of the defendants that it follows from this that no order for attachment can be made. But the ground of the decisions to which I was referred is the construction which the Courts have put upon Order XXXIV, Rule 6 of the Civil Procedure Code read with the other rules of this Order; and I do not see how these decisions can affect the plaintiff's rights under Order XXXVIII, Rule 5, if she makes a case there-under. That this is so, see Bishambhar Sahai v. Sukhdevi (1894) I.L.R. 16 All. 189 cited with approval in a decision of the Appellate Side of this Court: Jaiparkash Narain Singh v. Basanta Kumari Debi (1912) 15 Ind. Cas. 604. Miscellaneous Civil Appeal No. 42 of 1911.

3. The result is, that I think I should accede to the prayer of the petition and make the Rule absolute if I am satisfied that the contemplated sale is with intent to obstruct or delay the execution of any personal decree that may be passed hereafter. I think, under the circumstances, that having regard to the fact that there are no other properties and the extent of the incumbrances and the involved circumstances of the defendants, that I am justified in inferring this. I accordingly make the Rule absolute with costs.


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