KARNIDAN SARDA Vs. SAILAJA KANTA MITRA

JUDGEMENT

(1.) This is an appeal by defendants 2 and 3 and arises out of a suit in which a fund, which has been paid into Court by the Bengal Nagpur Railway is in dispute. The fund represents sums of money owing by the Bengal Nagpur Railway to defendant 1 for contract business done by defendant 1 for the Railway Company. The plaintiff's claim to the fund is based on a deed of hypothecation dated 12th February 1935. The defendant-appellants right to this money is based upon an attachment obtained by them on or about 3 April 1935 in execution of a decree for Rupees 43,000 odd. It will be necessary, in order to indicate the points raised in the Court below as also in this Court, to state the facts briefly. On 13 September 1933, the defendant, appellants brought a suit (Money Suit No. 120 of 1933) and obtained attachment before judgment of defendant l's immovable properties and the bills passed in his favour for payment.

(2.) The ad interim attachment was obtained on 14 September 1933; but on 6 November 1933, in the presence of defendant 1, these bills were released from attachment, although the attachment of other immovable properties was confirmed. The suit was eventually decreed on 3 April 1935, and it was upon that date (the actual date is not before me) that this attachment, upon which the defendants-appellants rely, was made. On 12 July 1935, the present plaintiff put in a claim case under Order 21, Rule 58, Civil P.C. It was the case of the plaintiff that he had advanced sums of money to defendant 1 to finance his contracting business which he was carrying on for the Bengal Nagpur Railway.

(3.) The claim case which the plaintiff started was supported by hatchitha representing the sums of money alleged to be advanced by the plaintiff to defendant 1. The case came on for hearing in January 1936, and after evidence had been adduced, the plaintiff (claimant) asked for leave to withdraw his claim and the Court granted the leave asked for on 11 January 1936. Two days later the claimant (plaintiff) withdrew from the Court the hatchitha which as I have stated he adduced in evidence to support his claim case. The surrounding circumstances are variously stated, but it was quite clearly the case of the defendant-appellants that they were of the opinion (rightly or wrongly) that this hatchitha was a forged document, and that they proposed to petition the Court to make an inquiry with a view to prosecuting the plaintiff.