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Rup Lall Dass and anr. Vs. Debendra Kumar Mandel - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1885)ILR12Cal546
AppellantRup Lall Dass and anr.
RespondentDebendra Kumar Mandel
Excerpt:
civil procedure code, 1882, sections 268, 274 - attachment and sale of mortgage bond--lien of purchaser on mortgaged property after attachment under section 268--presumption of payment of bond. - .....the second point is concerned with an alleged payment said to have been made by debendra kumar mandel in satisfaction of the two bonds.2. the judge in the court below has found that the prohibitory order was served, and after hearing the evidence we think that there is no ground upon which we ought to interfere with his decision upon this point. we may further observe that no question has been raised as to whether the order, required by section 301 of the code of civil procedure, was served. the presumption, therefore, is that this order was served; and it may be a question whether, if the order after sale required by section 301 were served, the service of the prohibitory order, which is the form of attachment before sale required by the code, is material or is wholly.....
Judgment:

Field, J.

1. Who after stating the facts as above continued: Two points have been argued before us upon the appeal. The first point is concerned with the service of the prohibitory order under Section 268 of the Code of Civil Procedure. The second point is concerned with an alleged payment said to have been made by Debendra Kumar Mandel in satisfaction of the two bonds.

2. The Judge in the Court below has found that the prohibitory order was served, and after hearing the evidence we think that there is no ground upon which we ought to interfere with his decision upon this point. We may further observe that no question has been raised as to whether the order, required by Section 301 of the Code of Civil Procedure, was served. The presumption, therefore, is that this order was served; and it may be a question whether, if the order after sale required by Section 301 were served, the service of the prohibitory order, which is the form of attachment before sale required by the Code, is material or is wholly immaterial.

3. Then as to the second point it is urged by the defendant-appellant that he paid a sum of money in satisfaction of two bonds before the service upon him of the prohibitory order. We have heard the evidence upon this point, and we concur in the conclusion at which the Subordinate Judge has arrived. We do not believe that this money was paid. We think it improbable that it would have been paid before the due date of payment provided in the bonds themselves; and we think that the account given by Debendra Kumar Mandel as to the mode in which he raised this money is improbable and untrustworthy.

4. But then it is said that it is an admitted fact that the bonds were in the possession of Debendra Kumar Mandel, and that from this arises the presumption that the bonds were satisfied. It must be borne in mind that this presumption is not urged as between the original creditor and his debtor; but is urged on the present occasion as between the person who has purchased the debt at an execution sale and the debtor; and we think that in this latter case the presumption has much less force than it would have as between the original creditor and his debtor. In order to rebut, the presumption arising from the possession of the bonds by Debendra Kumar Mandel, the plaintiffs have produced a large amount of evidence to show that the sum of Rs. 1,250 was paid by Debendra Kumar Mandel to Jagat in Joisti 1289, that is after the service of the prohibitory order. The fact of this payment, if it had taken place, would, it may be observed, be wholly immaterial, as regards the defendant's liability to pay the amount to the plaintiffs; and the only importance attached to the evidence is in connection with the presumption already referred to. If the evidence is true, if we believe that this payment of Rs. 1,250 was made in Joisti 1289, and that upon this payment an antedated endorsement of satisfaction was made upon the bonds, and they were handed over to Debendra Kumar Mandel, we have a complete explanation of Debendra Kumar Mandel's possession of the bonds which satisfactorily rebuts the presumption. There are, undoubtedly discrepancies in the evidence, there are traces of ill-feeling, which, in all probability, have led to much exaggeration; but looking at the evidence, as a whole, we are not prepared to dissent from the conclusion at which the Subordinate Judge has arrived,--namely, that a sum of money was paid after the service of the prohibitory order, and that upon the payment of this sum of money the bonds were handed over to Debendra Kumar Mandel.

5. This disposes of the appeal.

6. The question raised upon the cross-appeal may be briefly stated thus: It is said that inasmuch as the attachment was made under the provisions of Section 268 of the Code of Civil Procedure, and as no attachment was made in accordance with the provisions of Section 274, the sale in execution carried with it the debt merely without the lien. In other words, that in order to make the sale carry the lien as well as the debt, there ought to have been an attachment under the provisions of Section 274. We are not prepared to concur in the contention so raised. Section 266 of the Code provides that the property therein mentioned is liable to attachment and sale in execution, and amongst the property so mentioned we have 'bonds or other securities for money-debts, &c.;' Section 268 provides that in the case of (a) a debt not secured by a negotiable instrument, the attachment shall be made in a certain manner. Section 274 provides for the making of an attachment in the case of immoveable property. Now there can be no doubt that the debt in the present case is, within the meaning of Section 268, a debt not secured by a negotiable instrument. There is no special provision in the Code for a debt secured by a mortgage; and this being so, unless such debt comes within the provisions of Section 268, there is no other provision specially applicable, unless we are of opinion that such debt is immoveable property within the meaning of Section 274. We think that it is impossible to say that a debt secured by a mortgage, by a lien upon immoveable property, more especially when the mortgagee is not in possession, can be regarded as immoveable property within the meaning of Section 274. We are, therefore, of opinion that the debt which was sold in this case after an attachment made under Section 268 carried with it the lien.

7. In this view we think that the plaintiffs are entitled to enforce the lien created by the two bonds as against the immoveable property specified in those instruments.

8. The appeal will be dismissed with costs, and the cross-appeal will be decreed without costs, the learned Advocate-General consenting to this.


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