KETAKI RANJAN BANERJEE AND OTHERS Vs. BIPRADAS MUKHERJEE

JUDGEMENT

(1.) This rule at the instance of judgment-debtors is directed against certain orders passed by the learned Additional Subordinate Judge of Asansol in Title Execution Case No. 43 of 1948 arising out of Money Suit No. 30 of 1944 brought by the plaintiff opposite party for recovery of Rs. 29,996-10-6 and for certain other reliefs. That suit was decreed by the learned Additional Subordinate Judge of Asansol in part for Rs. 26,666-8-3 with proportionate costs and also for half the share of the profits of the "Master Engineering Concern" a partnership business. An appeal (Appeal from Original Decree No. 334 of 1947) against that decree preferred by the present petitioners is pending in this Court. After the filing of that appeal, the judgment-debtors-petitioners filed an application in this Court for stay of the execution of the decree on the grounds inter alia that the plaintiff-opposite party was in embarrassed circumstances and an order was passed on 27th February 1948, by this Court permitting the opposite party to withdraw the money deposited in the lower Court provided that he furnished security to the satisfaction of that Court. Pursuant to that order the opposite party offered to give personal security to the extent of Rs. 29,512-14-3 and this was accepted by the learned Subordinate Judge. The judgment-debtors were dissatisfied with that order of the learned Subordinate Judge, their contention being that the order of this Court on 27th February 1948, meant security in immovable property and not personal security and they moved this Court once again (Civil Rule NO 809/48) The rule was made absolute by this Court on 10th May 1949 on the following term amongst others:

(2.) It is against the orders referred to above viz., order No. 24 dated 11th June 1949 and order No. 28 dated 17th June 1949 that the present rule has been obtained by the judgment-debtors. It has been contended on their behalf that the learned Judge did not consider properly the objections urged on their behalf and that he has failed to exercise his jurisdiction properly by simply accepting the Sheristadar's report about the valuation of the properties offered as security. On going through the records we are of opinion that the grievance of the petitioners is not without substance. Determination of the sufficiency or otherwise of security offered by the parties is a judicial act and such act has to be performed judicially. Mere acceptance of the report of a ministerial officer on the point without applying the judicial mind to the consideration of the various factors bearing on it cannot be said to be a proper or adequate performance of a judicial act. The judgment-debtors had in their petition dated 2nd June 1949 before the lower Court raised various objections to the acceptance of the security bond. Reference may, in this connection, be made specially to Paras. 4, 5, 6 and 7 of that petition. There is some reference to these objections in the Sheristadar's report dated 30th May 1949. These objections were elaborated further in Paras. 16 and 19 of the revision petition filed in this Court on 22nd June 1949. The order of the learned Judge makes it abundantly clear that he did not deal with these objections in a manner which can be said to be adequate or proper and as such we are unable to uphold that order.

(3.) In the result, this rule is made absolute, the orders in question are set aside and the case is remitted to the lower Court. The learned Judge is directed to come to a proper decision on the question of the adequacy or otherwise of the security offered by the decree-holder. His attention is drawn specially to paras. 4, 5, 6, and 7 of the objection petition filed by the judgment-debtors on 2nd June 1949 as also to Paras. 16 and 19 of the revision petition filed in this Court on 22nd June 1949. The parties should be given reasonable opportunity to adduce such evidence, oral or documentary as they desire.