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Bakhir Mohammed Vs. Doorga Churn Shaha and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1884)ILR10Cal39
AppellantBakhir Mohammed
RespondentDoorga Churn Shaha and anr.
Excerpt:
attachment - civil procedure code (act xiv of 1882), section 266--property exempted from attachment--execution of decree. - .....to this rule are such cattle as, in the 'opinion of the court, are necessary to enable the execution-debtor to cam his livelihood as an agriculturist.'3. in order, therefore, to exempt from execution any cattle of the execution-debtor, it is necessary, as i take it, that the court should first express its opinion that such cattle are necessary to enable the execution-debtor to earn his livelihood; and i also think it is clear that the court which has to decide this point is the court which issues the execution.4. if this is so, it follows that neither the execution-creditor nor the execution-debtor, nor any court except that which issues the execution, has any right to determine this point; and in order that such court may decide it, i think that the execution-debtor should have.....
Judgment:

Richard Garth, C.J.

1. It seems to me that in this case the plaintiff had no right of action.

2. As a general rule, the defendant (the execution-creditor) would have had a right to sell any moveable property of the plaintiff's for satisfaction of his debt, but amongst the exceptions to this rule are such cattle as, in the 'opinion of the Court, are necessary to enable the execution-debtor to cam his livelihood as an agriculturist.'

3. In order, therefore, to exempt from execution any cattle of the execution-debtor, it is necessary, as I take it, that the Court should first express its opinion that such cattle are necessary to enable the execution-debtor to earn his livelihood; and I also think it is clear that the Court which has to decide this point is the Court which issues the execution.

4. If this is so, it follows that neither the execution-creditor nor the execution-debtor, nor any Court except that which issues the execution, has any right to determine this point; and in order that such Court may decide it, I think that the execution-debtor should have made some application to the Court on that ground.

5. It may be that the rule laid down by the High Court renders it difficult, if not impossible, that the execution-debtor should make this application in proper time, and it is probable that this rule requires amendment. But this is not the fault of the execution-creditor; and it seems clear to me that, until the Court which issued the execution had declared the bullock in question to be necessary to enable the plaintiff to get his living, the bullock was not protected from execution.

6. Furthermore, it does not appear that the plaintiff before the sale ever represented, either to the defendant or to the officer of the Court, that the beast was privileged from execution. This, I think, he was clearly bound to do.

7. Apart, however, from this first difficulty, which appears to me an insuperable one in the plaintiff's way, there is another, which arises upon the question of damages.

8. Assuming that the sale was wrongful, still the proceeds of it were devoted to the payment of the judgment-debt due from the plaintiff to the defendant. The price of the bullock, Rs. 15, which the Small Cause Court considers to be its full value, was paid to the defendant in execution pro tanto of the decree; and whatever may be the result of this suit, that money cannot be paid back again.

9. As, therefore, the plaintiff has had full value for his beast in the shape of the Rs. 15 which was produced at the sale, it seems to me that even if the suit were maintainable the damages would be only the difference, if any, between the Rs. 15 produced at the sale, and the value of a bullock of the same kind in the bazaar, plus the expenses of the sale, which of course the plaintiff had to pay.

10. The real truth seems to be that the High Court rule in this respect requires alteration. Those beasts used in agriculture are not privileged, until the Court has expressed an opinion that they are so; and the rule should be so framed as to allow of the execution-debtor making a claim in every case to have his beasts released, and to give the Court time to decide what may sometimes be a difficult question.

11. I think that the plaintiff's suit should be dismissed, but without costs.


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