DHARANI DHAR Vs. MRITYUNJOY MUKHERJEE

JUDGEMENT

(1.) This Rule was issued at the instance of an attaching creditor and raises a somewhat novel point.

(2.) The facts are as follows. It appears that opposite party 1, Mrityunjoy Mukherjee, obtained a mortgage decree against opposite parties 2 to 5 who are sons of one Rai Nalinaksha Dutta Bahadur, deceased. That decree was a kind of composite decree passed on 28-7-1934, by consent of parties. The predecessor-in-interest of the petitioner held a money decree against Mrityunjoy and on the strength of that decree he attached the mortgage decree held by his judgment-debtor Mrityunjoy. Thereafter, the judgment-debtor of the mortgage decree made an application under the Bengal Money-lenders Act for reopening the decree and the decree was in fact reopened. A new decree conforming to the provisions of the Bengal Money-lenders Act was passed on 19-11-.1946. I might refer also to another fact which it would be necessary to consider if the second point raised by the petitioner had to be examined but in view of the conclusion at which we have arrived on the first point, it is not really necessary to refer to that fact. I might, however, mention that on 21-11-1946, that is, only two days after the new decree had been passed, it was assigned by the decree-holder Mrityunjoy to opposite party 6, one Gossain Jitendra Chaitanya Bharati. The Rule has been opposed before us only by that opposite party.

(3.) The application out of which the present Rule has arisen was an application made by the petitioner for having a final decree passed in his own favour on the basis of the new preliminary decree passed on 19-11-1946. He made that application on the footing that his predecessor had attached the old decree and according to him the attachment had attached itself to the new decree when that decree was passed. Accordingly, on the footing of being an attaching creditor of the new preliminary decree, he applied for a final decree in his own favour. Two questions, therefore, arose, namely, (a) whether the attachment of the old decree was at all subsisting and whether it was available against the new decree, and (b) whether assuming the attachment subsisted and was available against the new decree, the petitioner could, as an attaching creditor apply for a final decree to be passed in his favour.