MAHARAJADHIRAJ SIR KAMESHWAR SINGH BAHADUR Vs. KULESHWAR SINGH

JUDGEMENT

(1.) These seven appeals arise out of seven analogous execution cases started by the same decree-holder, the Maharaja of Darbhanga, against the same judgment- debtors, Babn Kuleshwar Singh and others, in the Court of the Subordinate Judge at Bhagalpur. The decrees under execution in all these cases are money decrees, and the total claim amounts to about Rs. 1,17,000. The earliest of these execution cases is No. 224 of 1937 which was filed on 9 September 1937. A sum of Rupees. 1,25,000 was in deposit in the Benares Bank at Bhagalpur in the name of Kuleshwar Singh's deceased wife Mt. Debeshwari Bahuasin. The decree-holder prayed for attachment of this money on the allegation that it actually belonged to Kuleshwar Singh who had deposited it in the name of his wife. The prayer for attachment was allowed and the attachment was effected on 15 September 1937. The Benares Bank put forward the objection that the money did not belong to the judgment-debtor. The Subordinate Judge allowed this objection and withdrew the attachment on 22 February, 1938. The matter came up to this Court which by its order dated 18 November 1938 restored the attachment and directed that garnishee proceeding under Order 21, Rule 63C, Civil P.C., be started.

(2.) Mt. Debeshwari Bahuasin had died on 17 April 1937 leaving a will in favour of her daughters-in-law Biseshwari and Tarkeshwari. These two ladies filed on 11 January 1938 a claim under Order 21, Rule 58, Civil P.C., alleging that the attached money belonged to their mother-in-law Mt. Debeshwari Bahuasin and on her death they became entitled to the money by virtue of the will executed by her. They had already applied for probate of the will in the Court of the District Judge of Darbhanga. The claim case, however, was eventually dismissed for default on 28 January 1939. On 30 January 1939 the decree-holder filed an application for issue of notice on the Benares Bank under Order 21, Rule 63A, Civil P.C., calling upon the bank to show why the amount in deposit should not be paid into Court. Notice was issued accordingly, on receipt of which the bank wrote a letter dated 10 February 1939 to the Court saying that the amount in deposit was insufficient to cover the full amount under attachment. Later, on 9 March 1939, the bank applied for and obtained one month's time to make inquiries and ascertain the names of the legal representatives of the deceased depositor Mt. Debeshwari Bahuasin so that they might be impleaded under Order 21, Rule 63C, Civil P.C., and an order passed in their presence. On 1 May 1939 the bank filed an application in the Allahabad High Court for grant of moratorium under Section 277N, Companies Act, and on or about 4 May payment was suspended. On 5th May 1939, the decree, holder made an application praying for issue of notice on the bank to deposit the attached amount in Court forthwith. The Court accordingly issued a notice on the bank on 9 May 1939. The bank on receipt of this notice filed a petition on 24 May 1939 stating that an application had been filed in the Allahabad High Court for grant of moratorium under Section 277N, Companies Act, and payment had been suspended, and, therefore, the bank could not be compelled to deposit the attached amount in Court at that stage.

(3.) On 1 August 1939 one Bata Krishna Das applied to the Allahabad High Court for winding up the bank. On 17 August 1939, the bank's application for grant of moratorium was rejected. On 31 August 1939 the executing Court at the instance of the decree-holder wrote to the manager of the bank requesting him to deposit the attached amount in Court. On receipt of this letter the bank filed a petition on 25 September 1939 stating that as the matter of winding up was pending before the Allahabad High Court, the bank could not give preference to any one of its creditors, and praying that the letter be withdrawn. On 26 September 1939 the Court passed the following order: Heard both sides. The prayer for moratorium has been rejected. The bank should have thus no objection to bring the money within the custody of the Court. It was attached long ago. Now it is said that the proceedings for winding up are pending. This might be but this is no ground for withholding the money. I give one chance. Let the bank deposit the attached money in Court by 16 November 1939.