OJHA BROTHERS Vs. VOLKART BROTHERS & ANOTHER

JUDGEMENT

(1.) THIS is an appeal under cl. 10, Letters Patent, by the pltfs. in a suit which was originally instituted under O. 21, R. 63, Civil P. C.

(2.) DEFT . 1, Volkart Brothers, a firm carrying on business in motor parts & accessories in Calcutta, obtained, in February 1940, a decree for Rs. 585 -8 -0 in the Small Cause Court at Calcutta against Ojha Das & Co., & firm carrying on business in motor accessories at Patna, of which the deft. 2, Sripat Ojha, is the proprietor. The decree was transferred for execution to the First Munsif's Court at Patna, & in execution Volkart Brothers took out attachment, on 14 -1 -1941, against certain motor accessories & other moveables said to belong to their J. Ds., Ojha Das & Co. On 16 -1 -1941, the pltfs., Ojha Brothers, a firm also carrying on business in motor accessories at Patna, of which the proprietors are the two younger brothers of deft. 2, Sripat Ojha, preferred a claim under O. 21, R. 53, Civil P. C., asserting that the goods sought to be attached belonged to them & not to the J. Ds., Ojha Das & Co. They prayed for stay of the execution proceeding whereupon they were ordered to furnish security. In obedience to this Order, they filed, on 20 -3 -1941, a registered security bond executed by one Raghubir Tewari. The claim was eventually dismissed on 5 -9 -1941. The execution then proceeded.

(3.) IN August, 1942 the attached goods were sold & out of the sale proceeds, Rs. 70.10 -0 was paid to deft, 1 Volkart Brothers, by way of reliable distribution. The surety, Raghubir Tewari, made three payments, two of Rs. 60 each & the other of Rs. 50 to Volkart Brothers & these payments were duly certified in Court. As be did not make any further payment, the property given by him in security was proceeded against and sold in June 1943. To set aside that sale, the pltfs. made an application under O. 21, R. 89, Civil P. C. on depositing Rs. S57 -8 -6. Thereupon the sale was set aside. Volkart Brothers also realised from the pltfs. a sum of Rs. 85 as the costs of the claim case.