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Jogemaya Dassi Vs. Baidyanath Pramanick and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in50Ind.Cas.924
AppellantJogemaya Dassi
RespondentBaidyanath Pramanick and ors.
Cases ReferredJaiparkash Narain Singh v. Basanta Kumari Debi
Excerpt:
civil procedure code (act v of 1908), order xxxiv, rule 6, order xxxviii, rule 5 - mortgage, suit on--preliminary decree--mortgagee, right of, to attach other properties of mortgagor before date appointed for payment of mortgage money. - .....defendants the sum of rs. 6,003 and the defendants thereupon deposited the title-deeds of no. 3, jebb's lane, in this city to secure the sum advanced and interest thereon at 6 per cent, per annum. the, defendants agreed to repay the advance together with interest thereon at the rate aforesaid within 6 months from the date of the advance; default was made by the defendants in repaying the advance and, on the 21st november 191a the plaintiff commenced a suit to recover the money advanced together with interest thereon. on the 28th may 1917 a preliminary mortgage decree was passed in the suit declaring that the plaintiff was entitled to a charge for the sum advanced on 4/5ths of no. 3, jebb's lane, and the registrar was directed to take the usual mortgage account and liberty was given to.....
Judgment:

Greaves, J.

1. This is an application by the plaintiff for the attachment of certain properties of the defendants. On the 2nd May last, I granted a Rule calling on the defendants to show cause why these propel ties should not be attached and the Rule now comes on for hearing, On the 28th September 1913 the plaintiff advanced to the defendants the sum of Rs. 6,003 and the defendants thereupon deposited the title-deeds of No. 3, Jebb's Lane, in this city to secure the sum advanced and interest thereon at 6 per cent, per annum. The, defendants agreed to repay the advance together with interest thereon at the rate aforesaid within 6 months from the date of the advance; default was made by the defendants in repaying the advance and, on the 21st November 191A the plaintiff commenced a suit to recover the money advanced together with interest thereon. On the 28th May 1917 a preliminary mortgage decree was passed in the suit declaring that the plaintiff was entitled to a charge for the sum advanced on 4/5ths of No. 3, Jebb's Lane, and the Registrar was directed to take the usual mortgage account and liberty was given to the plaintiff to apply for a personal decree if the money to arise from a sale was insufficient to pay the amount charged on the property. The Registrar reported on the 21st November 1917 and found that there would be due to the plaintiff or; the 11th June 1918 a sum of Rs. 7,696 in respect of the said advance and appointed the 12th June 1918 as the date for the payment into Court by the defendants of the sum of Rs. 7,696 and costs. The premises No. 3, Jebb's Lane, formed part of the estate of one Behari Lal Pramanick and this estate was partitioned in Suit No. 698 of 1907, and by the return of the Commissioner of Partition appointed in the said suit which was dated the 19th March 1915 and which was confirmed by an order made in the said suit on the 20th June 1916, No. 3, Jebb's Lane, was allotted to the defendant Bissonath together with other property and various allotments were made to the other defendants. There are various prior mortgages en No. 3, Jebb's Lane, and I am satisfied upon the evidence that upon the realisation of these premises and of other premises rendered liable to the plaintiff's mortgage by virtue of the partition decree, the sum realised will not be nearly sufficient to satisfy the plaintiff's mortgage and that she will ultimately, after realisation of the mortgaged premises, have to apply for a personal decree against the defendants. I need not refer in detail to the figures which are set forth in the petition and which are not really challenged, indeed it appears from the defendant Bissonath's affidavit that the plaintiff has understated the amounts due on the prior mortgages. Under these circumstances the application is made as the defendants are alleged to be about to dispose of their sole remaining assets, or, I should rather say, realise them by sale with intent to defeat and delay any personal decree that may be passed against them. This is denied, but I think I must hold upon the evidence that the defendants are trying to dispose of their sole remaining assets, although there is really no evidence, apart from such inference as I may draw from the circumstances, that the object is to defeat and delay creditors.

2. Now it is well settled by authorities of this Court, which are binding upon me, that until the mortgaged properties are brought to sale, no personal decree can be obtained against the defendants, and it is said on behalf of the defendants that it follows from this that no order for attachment can be made. But the ground of the decisions to which I was referred is the construction which the Courts have put upon Order XXXIV, Rule 6, of the Civil Procedure Code, read with the other rules of this Order; and I do not see how these decisions can affect the plaintiff's rights under Order XXXVIII, Rule 5, if she makes a case thereunder. That this is so, see Bishambar Sahai v. Sukhdevi 16 A. 186 : A.W.N. (1894) 20 : 8 Ind. Dec. (N.S.) 120 cited with approval in a decision of the Appellate Side of this Court: Jaiparkash Narain Singh v. Basanta Kumari Debi 15 Ind. Cas. 604, Miscellaneous Civil Appeal No. 42 of 1911.

3. The result is, that I think I should accede to the prayer of the petition and make the Rule absolute, if I am satisfied that the contemplated sale is with intent to obstruct or delay the execution of any personal decree that may be passed hereafter. I think, under the circumstances, that having regard to the fact that there are no other properties and the extent of the incumbrances and the involved circumstances of the defendants, I am justified in inferring this. I accordingly make the Rule absolute with costs.


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