ABDUL GAFOOR BUTCHER Vs. MOHAMMAD RASUL NIZAMUDDIN

JUDGEMENT

(1.) This is an appeal by a judgment-debtor against an order of the District Judge of Manbhum Singhbhum confirming an order of the Subordinate Judge, Dhanbad, dismissing an application under Section 47, Civil P. C. It arises in the following circumstances :

(2.) The decree under execution was passed on 13th November 1946, on a compromise in a money suit. The decretal dues were settled at Rs. 2,443, and the decree-holder agreed to realise this sum out of a deposit standing at the credit of the judgment-debtors in the Hazradi Bank Dhanbad, and attached by the Court under Order 38, Rule 6, Civil P. C. The decree was signed on I8th November 1916, and the decree-holder applied for execution on 2lst November 1946. By the time the letter from the Court reached the bank directing payment out of the attached deposit the Bank bad closed its doors, and no reply was received from the bank. The objection under Section 47 that the decree-holder cannot proceed against any property of the judgment-debtors except the deposit in question has been rejected by the Courts below. Hence, this appeal.

(3.) Learned counsel for the appellant argues that the question is, which of two innocent parties should suffer. His client, he says, did all he could to make the bank deposit available to the decree-holder; all that was necessary was a letter from the Court to the Bank to sanction payment to the decree, holder and his client is not to blame if the letter did not issue in time. If anything, it was the decree-holder who was to blame, for the judgment-debtor has succeeded in getting from the bank the balance of the deposit after leaving a sufficient amount to meet the decretal dues. He urges that under the compromise it is not open to the decree-holder to proceed against any other property of the judgment-debtors.