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Jugmohan Pradhani Vs. Indra Chandra Choraria and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in59Ind.Cas.95
AppellantJugmohan Pradhani
Respondentindra Chandra Choraria and ors.
Excerpt:
mortgage-decree - insolvency of mortgagor--decree holder consenting party to composition scheme sanctioned by insolvency court--execution court, whether can go behind order of insolvency court. - .....of the satisfaction of the decree was being fought out between the judgment debtors and the decree-holder for several years goes to show that the latter was not a consenting party to the composition. but the adjustment of the decree, which was the subject-matter of decision in the previous proceedings which came up to this court, was an agreement set up by the judgment debtor under with the decree is said to have been adjusted and it was quite different from the com-position which we have to consider in this proceeding.3. the learned subordinate judge points out that one of the pleaders who withdrew the objections to the composition proposed, provided payment was made in cash, included the pleader for the decree-holder before us. the order of the 17th march 1917 shows that the.....
Judgment:

1. The appellant was no doubt, a secured creditor and his rights could not be affected by the composition unless he was a consenting party to it. The only question, therefore, before this Court is, whether he was a consenting party.

2. It has been pressed before us that the fact that the question of the satisfaction of the decree was being fought out between the judgment debtors and the decree-holder for several years goes to show that the latter was not a consenting party to the composition. But the adjustment of the decree, which was the subject-matter of decision in the previous proceedings which came up to this Court, was an agreement set up by the judgment debtor under with the decree is said to have been adjusted and it was quite different from the com-position which we have to consider in this proceeding.

3. The learned Subordinate Judge points out that one of the Pleaders who withdrew the objections to the composition proposed, provided payment was made in cash, included the Pleader for the decree-holder before us. The order of the 17th March 1917 shows that the scheme of composition was approved by the Court, that the Gouripur property which was in mortgage to the appellant-decree-holder was directed to be sold within one month and that a schedule was prepared under that order and signed and hung up in Court on the 2nd May 1917. The appellant had, in addition to the mortgage-decree, a secured debt on a mortgage-bond; and also an unsecured debt Having regard to these facts and other circumstances stated in the order-sheet, the learned Subordinate Judge came to the conclusion that the decree-holder was a consenting party to the composition. In these circumstances, unless the proceedings of the Insolvency Court are get aside, we do not see how the execution Court in the absence of evidence to show that the decree-holder was not a consenting party to the proceedings, go behind the order passed in these proceedings.

4. The result is that the appeal is dismissed with costs two gold mohurs.


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