SAROJ RANJAN SINHA Vs. JOY DURGA DASI

JUDGEMENT

(1.) This is an appeal from an order of the Subordinate Judge of Nadia dated 9 July 1931 made in the course of execution of a decree. It is necessary to state a few facts in order to determine the soundness or otherwise of the contentions raised on behalf of the judgment- debtors who are appellants before us. It appears that the decree-holder in the present execution case, Joy Durga Dasi, obtained a decree against the appellants for a sum of Rs. 6,093 odd. It further appears that the judgment debtors Saroj Ranjan Sinha and others obtained against the decree-holder Joy Durga Dasi a decree for a certain sum of money. Joy Durga put her decree into execution on 15 November 1929. In that execution case she calculated the amount which was due to her and allowed a set-off and the total sum after allowing the set-off due to her came to about Rs. 6,156 odd. Then Joy Durga instituted a title suit against the present judgment-debtors but she failed in all Courts including the Privy Council and the costs awarded against her in favour of the present appellants have been stated to be Rs. 326 in the first Court, Rs. 1,004 in the Second Court, that is in the High Court, and ?238 are the costs awarded against her by the Judicial Committee of the Privy Council.

(2.) On 29 November 1929 the present appellants applied for transmission of the order of His Majesty in Council to the lower Court under the provisions of Order 45, Rule 15, Civil PC. After the said order was transmitted it was open to Joy Durga to take the plea of set-off. On 10 December 1929 Joy Durga made an application for set-off of costs due to the judgment- debtors which came to about Rs. 4,442. On 11 December 1929 the Court executing the decree of Joy Durga, that is the Subordinate Judge of Nadia received a notice of attachment before judgment of the decree which Joy Durga the decree-holder had obtained against the present appellants. That order was made in Suit No. 167 of 1929. On 15 January 1930 the same Court received another notice of attachment before judgment in respect of another suit which is said to be numbered 65 of 1930. An objection was filed on behalf of the appellants that as the decree sought to be executed by Joy Durga formed the subject matter of the present execution proceedings the property was directed to be attached and notice of attachment had been received by the Court of the Subordinate Judge that had the effect of arresting the execution of the decree of the present decree-holder respondent, namely Joy Durga Dasi. This is the objection which was taken before this Court although it was not taken precisely in the present form before the executing Court. The precise objection which was taken before that Court is to be found in para. 8 of the petition of objection on behalf of judgment-debtors filed on 15 February 1930 where the objection ran in these terms: These judgment-debtors have got the decree in money Suit No. 167 of 1929 of your Honour's Court and the decree in money Suit, No. 65 of the First Munsif's Court at Krishnagar passed in favour of the decree-holder put under attachment before judgment. Under the circumstances there cannot be any set-off.

(3.) It appears therefore clear that the objection which is now taken before us is that the effect of the attachment before judgment brought about at the instance of the present appellants was to arrest or stay the execution of the decree of the present decree-holders against the judgment.debtors. This argument which has been addressed to us will be dealt with later on. It will be sufficient to state here that the objection which was taken did not prevail with the Subordinate Judge who remarked on this part of the case as follows: In this case we find that as soon as the decree-holder filed an application for set- off the judgment-debtors brought suits and got the decree of the decree-holder attached before judgment, thus making it impossible for her to realize her own dues while keeping their liabilities unpaid.