KHEMCHANDRA Vs. BUDH SINGH

JUDGEMENT

(1.) THIS appeal has been presented by the decree-holder and is directed against the order dated 1st December, 1959, passed by Shri Sohan Nath Modi, District Judge, Kotah. It arises out of an execution case in which the decree-holder prayed for execution of the decree by arrest and detention in prison of the judgment-debtor Budhsingh.

(2.) IN September, 1958, the Umed Smarak Samiti, Kotah obtained a decree for Rs, 30,000/- against Budhsingh Bapna, the respondent judgment debtor, and others. The appellant Khemchandra, who was Secretary of the Umed Smarak Samiti, Kotah, presented the execution petition in question. The ground on which he prayed for arrest and detention of the judgment-debtor Budhsingh was mainly that the decree was in respect of a sum of money for which the judgment-debtor was bound in a fiduciary capacity to account. It is not necessary to mention the other grounds on which the prayer was founded. A preliminary decree in this case appears to have been passed against the judgment-debtor Budhsingh for rendition of accounts in respect of the amount belonging to the decree-holder and in the custody of the judgment-debtor and then after the preliminary decree the final decree followed. It is obvious, therefore, that the judgment-debtor was bound in a fiduciary capacity to account to the decree-holder in respect of the amount decreed The court below has overruled the contention of the decree-holder that the relationship, which subsisted between the parties, was merely that of a banker and a customer. As found in the suit in which the decree was passed, the judgment-debtor was the Vice President of the Umed Smarak Samiti and in that capacity he was authorised to withdraw monies belonging to the Samiti from the Kotah Cooperative Bank which was the banker of the Samiti at that time. IN that capacity the judgment-debtor withdrew certain sums from the Cooperative Bank from the account of the Samiti and deposited the same in his own firm namely Ganeshdas Hamirmal. Having regard to these facts, there could, therefore, be no doubt that the judgment-debtor was bound in a fiduciary capacity to account for the money in respect of which the decree was passed against him. Therefore under sec. 31 (c) of the Code of Civil Procedure, the decree-holder was entitled to execute he decree by process of attachment of the person of the judgment-debtor and by his detention in civil prison. The court, however, thought, in the circumstances of the case, it would be much more expedient in the interest of realisation of the decree that instead of sending the judgment debtor to civil prison, he should be allowed some reasonable time within which to pay the decretal amount by instalments. The court directed that a sum of Rs. 15,000 - should be deposited by the judgment-debtor forthwith in part satisfaction of the decree and that he should be given six months' time to pay up the balance of the decretal amount failing which he was to be arrested and detained in civil prison. It is against this order that the decree-holder has preferred the appeal.