DEENANATH Vs. MATHURADAS

JUDGEMENT

(1.) IN this case a question has been put up by a learned single Judge of this court for answer by a Bench. It is as follows: - "whether the amount of the decree paid by the surety to the decree-holder outside the court can be said to be 'an asset held by the court' within the meaning of sec. 73 Civil Procedure Code?"

(2.) THE facts of the case may be briefly narrated to understand the point involved. THEre was a suit by Mathura Das Bulaki Das against Laxminarain and others. In that suit there was an attachment before judgment of the goods of Laxminarain and others. In that connection, Gulab Chand furnished security on the 20th of April, 1948, and agreed to pay the decretal amount in case a decree was passed against the defendant and they failed to pay up the decretal amount. It appears that] the attached goods were thereupon released. THEn followed a decree in favour of Mathura Das Bulaki Das. It was put into execution by them in 1949. It appears that Deena Nath, applicant, had also obtained a decree against Laxminarain and others. He applied for execution on the 28th of February, 1948, and for rateable distribution on the 17th of March, 1950. Soonafter, the execution court issued a notice to Gulab Chand surety on the 1st of April, 1950, to show cause why the decretal amount should not be realised by him by arrest. On the 8th of April, Gulab Chand appeared in court and wanted time. On the 22nd of April, which was the next date fixed, Gulab Chand again prayed for time to pay the amount. On the 24th of April, 1950, Gulab Chand did not appear but the decree-holder viz. , Mathura Das Bulaki Das filed a receipt in court showing that the decretal amount had been paid to him by Gulab Chand out of court. THEreupon, Deena Nath prayed that the decree-holder viz. , Mathura Das Bulaki Das should be ordered to deposit the amount that he had taken from the judgment-debtor in court so that it may be rateably distributed. THE trial court refused this prayer. THEreupon the present revision was filed in this court and the learned single Judge has referred this question to a Division Bench for decision.