PADAMCHAND PANNALAL Vs. BHICUMCHAND CHURURIA

JUDGEMENT

(1.) The appellants Padamchand Pannalal on 11 February 1930 sued one Deepchand under his trade name of " Now East Bengal Stores " in the Calcutta Small Cause Court for Kb. 1,951- 2-0 for goods sold and delivered. On 26 February the suit was decreed for the sum of Rs. 2,195-1-0 which included certain costs. On 11 March execution was applied for and on the 13 the stock-in-trade of Deepchand's shop was attached by the Small Cause Court. On the 17 one Bhicamchand Churoria made a claim to the attached property. He did so in the manner provided by a special rule which has for many years obtained in the Court and is applicable to proceedings of the kind known as "investigation of claims objections" that is proceedings under what are now Rule 58 to 62, Order 21, Civil P. C. (This special rule is now Rule 102 of the Rules of Practice. It was till recently Rule 96.) Under that rule the claim is made by filing a plaint in which the claimant is plaintiff and the execution creditor defendant, " and the matter shall then be treated as a suit." Bhicamchand in his plaint put a value upon the subject-matter of his claim, He valued it quite incorrectly : [Khetra Pal V/s. Mumtaz Begam [1916] 38 All. 72], at Rs. 4,000 this being his estimate of the value of the goods which had been attached. Thereupon having filed his claim he obtained an order that the attached property should be released on his furnishing security for the amount of the decree, and a few days later--20 March--the property was released from attachment on his entering into a bond to pay the decretal sum if his claim suit fails." On 30 April his claim was dismissed with costs.

(2.) It may here be noted that after 20 March the judgment-creditors Padamchand Pannalal had no interest in or concern with the property which had been attached. They had none if the claim case succeeded: they had none if the claim case failed. In the latter event the claimant, his heirs, executors, etc,, were liable on his covenant to pay the decretal sum but the judgment-creditor had ceased to have any right against Deepchand's stock-in trade, the attachment having been released. In that state of affairs Bhicamchand on 9 May 1930, brought in the High Court the suit out of which the present appeal arises. He pleaded, to put it shortly, that Deepchand's stock-in-trade had been hypothecated to him since 17 February 1930 and that over Rs. 10,000 was due to him on the security. Besides Deepchand he impleaded certain persons whom he alleged to have subsisting attachments on the property, and he also impleaded Padamchand Pannalal, now appellants before us, He sot forth that these appellants had obtained an attachment, that his claim case had been dismissed and that ho had given a bond for the decretal amount. The relief asked as against the appellant was simply a declaration of his charge on Deepchand's stock-in-trade.

(3.) The learned Judge has given him this declaration as against the appellants and has directed them to pay certain costs of the suit. The appellants by their counsel contended at the trial that the suit was not maintainable as against them, as at the date of the plaint or the date of the hearing the appellants had no interest whatsoever in the goods; and as Bhicam- hand a liability on his bond was conditional upon the result of the claim case and upon nothing else, I am of opinion that the learned Judge should have accepted this contention of the appellants and dismissed them from the suit with costs.