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Koylash Chunder Sen Vs. Koylash Chunder Chakrabarti and Mohendro Nath Bose - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtKolkata
Decided On
Judge
Reported in(1884)ILR10Cal1057
AppellantKoylash Chunder Sen
RespondentKoylash Chunder Chakrabarti and Mohendro Nath Bose
Excerpt:
civil procedure code - act xiv of 1882, sections 280 and 281--attachment--satisfaction of decree by private sale--purchaser--subsequent attachment--claim under section 278. - orderprinsep, j.1. mothura mohun ohakrabarti and another attached certain property in execution of a decree obtained by them. koylash chunder ohakrabarti, another decree-holder, also applied for execution of his decree, and for attachment, but it appears that no attachment was taken out by koylash for some time. while the attachment of mothura mohun was in force, the judgment-debtor, without the permission of the court specially obtained, sold their property to koylash chunder sen, who is known as the claimant, and thus satisfied the decree of mothura mohun and radanath; no further proceedings were taken by these decree-holders.2. koylash chunder ohakrabarti then obtained an order for the attachment of the same property in execution of his decree; whereupon koylash chunder sen preferred a.....
Judgment:
ORDER

Prinsep, J.

1. Mothura Mohun Ohakrabarti and another attached certain property in execution of a decree obtained by them. Koylash Chunder Ohakrabarti, another decree-holder, also applied for execution of his decree, and for attachment, but it appears that no attachment was taken out by Koylash for some time. While the attachment of Mothura Mohun was in force, the judgment-debtor, without the permission of the Court specially obtained, sold their property to Koylash Chunder Sen, who is known as the claimant, and thus satisfied the decree of Mothura Mohun and Radanath; no further proceedings were taken by these decree-holders.

2. Koylash Chunder Ohakrabarti then obtained an order for the attachment of the same property in execution of his decree; whereupon Koylash Chunder Sen preferred a claim under Section 278 of the Civil Procedure Code, alleging that he was in possession of the property under a purchase from the judgment-debtor, as just stated. The Subordinate Judge has disallowed the claim on the ground that the claimant had no title, as he purchased while the property was already under attachment.

3. It has been contended before us by Mr. Evans, that the Subordinate Judge should have confined himself to determining, within the terms of Section 280, whether the property purchased by his client was not, when it was attached by Koylash Chunder Ohakrabarti, in his possession on his own account, and that his client is entitled to an adjudication on this sole ground.

4. It is further contended that the view taken by the Subordinate Judge of the title of the claimant is incorrect; that the claim of the decree-holder Koylash Chunder Ohakrabarti was not enforceable under the attachment obtained by Mothura Mohun and Radanath, and that, therefore, the purchase, while the property was under attachment by those decree-holders, was not void under Section 285 as against Koylash Chunder Chakrabarti.

5. We think that, under the circumstances of this case, the first contention is good. The attachment of Koylash Chunder Chakrabarti was the sole attachment then before the Court; and it was against this attachment that the objection was raised by Koylash Chunder Sen. We are not disposed in the present case to express any opinion regarding the title of Koylash Chunder Sen. But the difficulties which would arise in summarily adjudicating on this title, in the manner in which it has been dealt with by the Subordinate Judge, are apparent from the fact that the decree of Mothura Mohun and Radanath, as stated in the affidavit, which has not been contradicted by the other side, was against three persons, and the attachment was of the entire property belonging to the three jointly; whereas the attachment of Koylash Chunder Ohakrabarti was directed only to one of those three judgment-debtors, and therefore it would not follow that under Section 295 Koylash Chunder Ohakrabarti would be entitled necessarily to participate in the assets realized by any sale that might have taken place in execution of a decree obtained by Mothura Mohun and Radanath. We think, therefore, that the case must be returned to the Subordinate Judge in order that he may proceed in the manner prescribed by Section 280.

6. The petitioner is entitled to his costs.


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