SHEIKH CHHUTTAN Vs. JWALA PRASAD

JUDGEMENT

(1.) This appeal is brought against an order which purports to be trade under Section 144, Civil Procedure Code, in Suit No. 789 of 1907 filed by the respondent, Jwala Prasad, against Sewa Singh and certain other defendants.

(2.) In that suit Jwala Prasad caused the produce of 37 plots to be attached. The present appellant, Sheikh Chhuttan, asked that the sale of the crops might be stayed on account of a declaratory suit which he was filing. He did file such a suit against Jwala Prasad and certain third parties on 13 April 1920 for a declaration that the crops in dispute were not liable to sale under Jwala Parasad's decree but were the property of tenants cultivating from him on a batai rent so that he, Sheikh Chhuttan, was entitled to half the crops. Sheikh Chhuttan's suit was decreed by the Court of first instance. While this suit was pending an application was made by him to have the crops made over to a sipurdar and they were made over to two persons, Khumani, who was a servant of Sheikh Chhuttan, and one Sewa Singh. In some way which is not explained the crops were subsequently entrusted to Sheikh Chhuttan's son, the second appellant. Kalim-ud-din. After Sheikh Chhuttan's suit was decreed Kalim-ud-din made over half the crops to his father and the other half to the tenants. This was about October 1920, On 28th July 1931 Sheikh Chhuttan's suit was dismissed in appeal.

(3.) Jwala Prasad's application for execution of his decree had remained pending from 28 February 1920. Thereupon on 2 May, 192T the decree-holder, Jwala Prasad, filed an application which is on the record asking that the grain might be brought to sale and stating that he would take separate proceedings for the loss caused to him by the wrongful suit of Sheikh Chhuttan. The Court then issued notice to the sipurdar to produce the property for sale. Notice seems to have been served on Kalim-ud-din, for the order-sheet contains an order of the Court dated 17 December 1921 stating that he objects that he was not sipurdar in this case but in the case instituted by his father. The Court overruled this objection on the ground that the property was attached in Jwala Prasad's suit and that the attachment became subject to the result of the suit subsequently filed by Sheikh Chhuttan. The Court held that Kalim-ud-Din was bound to produce the property and that being unable to do so by reason of having given it to other persons without authority from the Court he was bound to deposit the price. Ultimately, on 1 September 1922, the order out of which the present appeal arises was passed against Sheikh Chhuttan andKalim-u4-din directing them to pay Rs. 1,000 in respect of the attached crops wrongfully appropriated by them. An appeal was preferred to the District Judge. To this appeal a preliminary objection was taken that no appeal lay; the learned Judge held that Section 144, Civil Procedure Code, applied but on the merits considered that the Munsif's order was correct and declined to interfere.