BHARAT SAW MILL CO LTD Vs. TARAPADA SUR

JUDGEMENT

(1.) This suit was instituted by the Plaintiff, Bharat Saw Mill Co., Ltd., in this Court against the Defendant Tarapada Sur for the recovery of Rs. 1,706-4-0 due on account of price of goods supplied. On December 4, 1945, the Plaintiff obtained an order in this suit attaching before judgment certain machinery which it alleged belonged to the Defendant. In January, 1946, certain persons, whom I will describe as the claimants, presented an application to this Court under Order XXI, Rule 58 of the Code of Civil Procedure, objecting to the attachment and claiming ownership of the attached machinery. On February 8, 1946, an order was made on this application, whereby, upon the claimants undertaking not to dispose of the machinery and upon their depositing with their attorney, Mr. G.C. Mitter, a sum of Rs. 1,750 to be held by the attorney free from any lien subject to further orders of this Court as security for the claim of the Plaintiff, the attachment was removed and the application was directed to stand over till after the hearing of the suit. The claimants duly deposited with their attorney, Mr. Mitter, the sum of Rs. 1,750 in terms of the said order. On May 29, 1946, a decree was passed in this suit against the Defendant Tarapada Sur for the said sum of Rs. 1,706-4-0 with costs and interest on judgment. Thereafter, on June 6, 1946, the application under Order XXI, Rule 58, came up for disposal and the following order was made:

(2.) The Plaintiff had its costs duly taxed and the costs that it was entitled to recover from the Defendant amounted to Rs. 1,033-6-4 and those that it was entitled to recover from the claimants, being the costs of the claim proceedings, amounted to Rs. 913-9-7. On August 15, 1946, the claimants filed a suit in the court at Hooghly for a declaration of their title to the attached machinery and for an injunction restraining the Plaintiff from executing its decree in this suit against the machinery. This was a suit under Order XXI, Rule 63 of the Code of Civil Procedure and it was decreed in favour of the claimants on May 11, 1947. The position, therefore, is that the claimants are entitled to the machinery and these are not liable to be proceeded against in execution of the decree in this suit.

(3.) On September 7, 1949, the Plaintiff took out the present summons for an order that Mr. G.C. Mitter do pay to its attorney towards the Plaintiff's claim and costs herein the sum of Rs. 1,750 deposited with him by the claimants under the order of February 8, 1946.