BEHARI LAL-RAM CHARAN Vs. BADRI PERSHAD

JUDGEMENT

(1.) The appellant is a decree-holder who obtained a decree for money on 8th August 1928 against five judgment-debtors. The judgment-debtors-were divided into two parties, Nos. 1 to 3 forming one party and Nos. 4 and 5 the other party. Before the passing of this decree there had been a partition between the five defendants, and it was decided in the partition suit that defendants 1 to 3 would be liable for the debt due to the appellant. For that reason the Court, although passing the decree against the five defendants, made an order that the plaintiff (who is now the appellant before us) should at first try to realize the amount from defendants 1 to 3, and defendants 4 and 5 should help him in realizing the amount from them; but in case he fails to realize all the amount from defendants 1 to 3, and defendants 4 and 5 fail to help him in realizing the amount from defendants 1 to 3, then the plaintiff will be entitled to realize the amount, or any balance due to him from defendants 4 and 5.

(2.) In the partition suit defendants 4 and 5 were given a decree for a sum of money against defendants 1 to 3 and defendants 4 and 5 proceeded to execute their decree and attached the whole immovable property of defendants 1 to 3. Defendants 1 to 3, sold their property privately for Rs. 25,000 and plaintiff- appellant applied for rateable distribution. The execution Court alloted Rs. 12,000 to the plaintiff-appellant, the balance being allotted to defendants 4 and 5 and to other creditors,

(3.) On 19 January 1929, the appellant applied to the execution Court, Cawnpore, for a transfer certificate to proceed against the money which had been deposited in favour of defendants 4 and 5 in the Court at Fatehpur. Badri Prasad, defendant 4, had already sold his share in the decree and the application was for the attachment of the share of Dwarka Prasad, defendant 5 only.