ARJUN LAL Vs. BANBEHARI

JUDGEMENT

(1.) These appeals arise out of one judgment of the Subordinate Judge of Asansol in a proceeding under Section 47, Civil P.C. instituted on an application by the Receiver of a certain trust property known as the Mukunda Madhusudan Trust Estate. Execution of a decree in Money Suit No. 288 of 1932 of the Dhanbad Court was proceeding in the Court of the Subordinate Judge of Asansol, the trust estate be-ing defendant 15 in that suit. Arjun Agarwalla, assignee of the decree in Money Suit No. 288 is the appellant in F. M. A. No. 132 while the Receiver Bon-behari Chatterjee, is the appellant in F. M.A. No. 192. The trial Court has held: (1) that the objector's contention that the decree in Money Suit No. 288 of 1932 is not valid against the trust estate cannot be raised in execution proceedings; (2) that notice under Order 21, Rule 16 was duly served on the trust estate; (3) that the act that the decree- holder had accepted certain sums from some of the judgment-debtors, viz., Rs. 1500 from original defendants 9-11, Rs. 1500 from defendants 31-35, and Rs. 1100 from defendant 13 in full satisfaction of their claims was no bar to his realizing the whole balance from the Receiver; (4) he has however directed as a Court of equity and as the Court appointing the Receiver in T.S. No. 22 of 1937, that the Receiver is only to be allowed to pay first the actual share of the estate, namely 10 1/2 pies and has directed that the decree-holder will them after realization of this amount, proceed against the other judgment-debtors and on his failure to obtain the decretal amount from them, he will be allowed to proceed with the execution of the decree against the properties in the hands of the Receiver, after taking fresh permission of the Court. The Receiver appeals in respect of the first three decisions; the decree-holder appeals in respect of the limitations contained in the fourth decision.

(2.) Money Suit No. 288 of 1932 was brought in respect of certain mining royalties. Defendant 7 in the suit was Sm. Indumati Debi; defendant 8 was Sm. Gopi-bala Debi, both described as daughters of Mukunda Lai Laik, who was in fact the settlor of the trust Mukunda Madhusudan Sampat, which is so named in the deed of trust. Defendant 15 was the Mukunda Madhusudan Sampat Trust Estate.

(3.) The final decree is Ex. A (A/part II/4). As appears from the judgment in the suit after restoration (Ex. 3B. Part II/l) dated 29 June 1933, the suit was originally decreed on 16th August 1934 on contest against defendant 14 and ex parte against defendants 4-36. There were three applications for restoration under Order 9, Rule 13, Civil P.C. one of which was made on behalf of defendant 15 (Mukunda Madhusudan Trust Estate). It appears further that originally the suit was only against defendants 12 to 14 heirs of one of the four original lessees, and that the remaining defendants, including defendant 15, the trust estate, were subsequently brought on the record. After restoration a joint decree on contest against defendant 15 and against others was passed on 29 June 1935 and this was made joint with the previous decree against the other defendants. The decree recites that the suit was disposed of in the presence of Mr._Sasanka Mukherjee, pleader for defendant 15. The Vakalafnama filed in the suit on behalf of the estate, dated 21 January 1934, bears the seal of the Mukunda Madhusudan Sampat Estate, with Srimati Indumati Debi shown as Kartri Paricharika , and is signed by her as such. This was filed before the original ex parte decree was passed on 16 August 1934, and the judgment after restoration shows that defendant 15 filed a written statement at the original stage. There was an issue in the suit after restoration. "Has the plaintiff any cause of action for this suit against defendants 15, 21 (a) and 30" and there is a. finding that the plaintiff "as assignee has got every right to claim the arrear of rent purchased by her from all the principal defendants who are the heirs and legal representatives of the original lessees," and that nothing had been shown why "the plaintiff should not get a decree against the present defendants."