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Uzir Biswas Vs. Haradeb Das Agarwalla - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in57Ind.Cas.249
AppellantUzir Biswas
RespondentHaradeb Das Agarwalla
Excerpt:
civil procedure code (act v of 1908), section 60 - agriculturist--consent decree--immoveable property charged with decretal amount--execution of decree--objection that property is non-transferable, whether can, be taken by judgment-debtor. - 1. this appeal arises oat of proceedings in execution of a decree, it appears that the plaintiff-decree-holder brought a suit for recovery of a certain sum of money against the judgment debtor and sought to attach some of his properties before judgment. thereupon the parties came to terms and it was agreed that the amount claimed would be paid in certain instalments by the judgment-debtor and that on default the plaintiff would be entitled to realise the same from the moveable and immoveable properties of the judgment debtor, and from his person. it was further agreed that the property which had been sought to be attached before judgment would remain charged for the decretal amount and would not he transferred by the judgment-debtor.2. some of the properties sought to be attached before.....
Judgment:

1. This appeal arises oat of proceedings in execution of a decree, It appears that the plaintiff-decree-holder brought a suit for recovery of a certain sum of money against the judgment debtor and sought to attach some of his properties before judgment. Thereupon the parties came to terms and it was agreed that the amount claimed would be paid in certain instalments by the judgment-debtor and that on default the plaintiff would be entitled to realise the same from the moveable and immoveable properties of the judgment debtor, and from his person. It was further agreed that the property which had been sought to be attached before judgment would remain charged for the decretal amount and would not he transferred by the judgment-debtor.

2. Some of the properties sought to be attached before judgment were non-transferable occupancy holdings and some of the other properties were the dwelling houses of the judgment-debtor who is an agriculturist.

3. A decree was passed on these terms by the Court. The decree-holder then applied for execution of that decree by attachment and sale of the properties which had been sought to be attached before judgment. Objection was raised on behalf of the judgment-debtor on the ground that the properties could not be attached or sold. The Courts below have disallowed the objection on the ground that as the decree-holder had been led to change his position by reason of the arrangement come to under the compromise, the judgment-debtor was equitably stopped from raising the objection that the properties were not saleable.

4. The judgment debtor has appealed to this Court.

5. We think that the consent decree is certainly binding upon the judgment-debtor, and upon a proper construction of that decree we think that the properties, which the decree-holder sought to attach before judgment and which are now objected to as being not transferable, were under the terms of the decree liable for satisfaction of the amount of the decree. If that was not the object, we do not see the reason why the properties were to remain charged for the decretal amount. The decree, therefore, is binding upon the judgment-debtor. It is unnecessary to consider the question, whether it was necessary for the decree holder to bring a suit upon the charge, because in the present case the decree-holder has simply applied for attachment and sale of the properties as in execution of a decree for money.

6. In these circumstances, the appeal must be dismissed with costs, one gold mohur.


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