MOHANLAL Vs. SHIVLAL CHUNNILAL

JUDGEMENT

(1.) THIS petition is directed against an order of the court below refusing to exercise its inherent power under Section 151, C.P.C. and secure to the petitioner the refund of money said to have been recovered from him at the instance of the opponent by means of proceeding involving abuse of the process of the Court. The circumstances giving rise to the present petition are as follows: -

(2.) PETITIONER Mohanlal's father Chironjilal filed a suit for money against one Bansidhar and secured against him an order for attachment before judgment. In pursuance of the said order certain ornaments were attached and were entrusted to Ghanshyamdas, the son and Mukhtyar -Aam of Chironjilal for safe Custody with direction to produce them in court when he is required to do so. Later Chironjilal died and the ornaments attached before judgment continued to be in the possession of the petitioner as the heir of Chironjilal. While the attached property of Bansidhar was thus with the petitioner me opponent who had obtained a money decree against Bansidhar, applied for its execution and prayed for the issue of a warrant of attachment for the recovery of the amount in execution Rs. 188 -2 -3. The executing court issued a warrant. By that time no decree had been passed in favour of the petitioner. When the Nazir went to the house of the petitioner with the warrant aforesaid the petitioner represented the Ghanshyamdas who was looking after his father's litigation had gone out and that consequently he was unable to hand over the ornaments to him and agreed to deposit them in the court later. Petitioner's case is that in spite of his request Nazir would not agree and threatened him with attachment and that therefore he handed over to the Nazir Rs. 188 -2 -3 in cash on 12 -1 -1957. After this other decree -holders of Bansidhar also sought attachment. Thereupon Ghanshyamdas deposited the ornaments of Bansidhar held by him in Court on 5 -2 -1957 after securing decree against Bansidhar in the suit filed by his father on 2 -2 -1957. The amount of Rs. 188 -2 -3 deposited by petitioner on 12 -1 -1957 were paid off to the opponent, Somani.

(3.) THE defence put upon behalf of the opponent to this petition was that the property had neither been entrusted to Ghanshyamdas as a Supraddar nor was he a public officer with reference to the said ornaments of Bansdhar. The property was under the Supradaoma of Chironjilal and on his death his sons and legal representatives became liable to produce the property in court when called upon to do so. The court had asked for the production of the property with a view to its sale in execution of the decree but the petitioners and his brother realising that they had not by then secured a decree thought fit to take the risk and chose voluntarily to deposit the amount is execution with reference to opponent's decree. The petitioner could not seek court's aid by invoking its in herent powers after the decree obtained by the opponent had been entered as satisfied and proceeding closed.