JITENDRA NATH SAMANTA Vs. ASUTOSH DEY

JUDGEMENT

(1.) This is an appeal by the decree-holder against an order of the Court below dismissing the execution case as against the judgment-debtor No. 2 Asutosh Dey. The facts are rather complicated but they may be briefly stated thus: The property which was a Colliery belonged originally to one Satish Chandra Mittra, Mr. J. G. Galstaun obtained a decree against him and attached this Colliery on the 20 April 1919. On the 11 September, 1919, Satish mortgaged this property to the present appellant. The respondent to this appeal (the judgment-debtor No. 2 Asutosh Dey) took out several executions and attached this property. It was sold on the 4 July 1919 for Rs. 1,11,500 in Galstaun's execution case. On the 23 July 1921, the appellant brought a money suit in the Asansole Court and caused attachment before judgment to be levied on the balance that might be left over after payment of Galstaun's dues. On the 30 July, 1921, the appellant brought a suit (No. 172 of 1921) on the mortgage executed in his favour on the 11 September, 1919, by Satish and caused the sale proceeds to be attached. The matter related to several attachments and came before the Court for consideration on 8 September 1921 which passed an order to the effect that after payment of the costs of execution and the amount due to Mr. Galstaun the balance would first be paid to the respondent who held five decrees against Satish in execution of which ho had attached the sale proceeds. These items together totalled Rs. 90,876. As regards the balance of Rs. 20,623 the Court passed the following order: After paying the above amounts the balance be kept under attachment as follows: namely, Rs. 8,000 as directed by the Asansole Sub-Judge's Court and the balance in favour of the plaintiff of Suit No. 172 of 1921 as attachment before judgment.

(2.) As a result of this order Mr. Galstaun was paid off in full and all the five decrees held by the respondent were also satisfied in full. The appellant obtained a decree in the mortgage suit No. 172 of 1921 on the 12 December, 1921, and on the 14 December he withdrew Rs. 12,623 out of Rs. 20,000 in deposit in Court leaving a sum of Rs. 8,000 in deposit presumably for the satisfaction of his claim in the money suit which was decreed in February, 1922. On realising Rs. 12,623 on the decree in the mortgage suit there was a small balance of Rs. 1,400 left unpaid. The present execution case relates to that amount of Rs. 1,400 which has been levied against the respondent under the following circumstances. The appellant brought the suit as aforesaid on the mortgage against the mortgagor Satish and in that suit be alleged that as the respondent was one of the attaching creditors of Satish and had attached the money in the hands of the Court over which the appellant had prior lien he was a necessary party to the mortgage suit and, therefore, he also was made a defendant. At the hearing of this suit the respondent did not appear and the decree that was passed against him was in these words: If the surplus sale proceeds in deposit in Court are not found sufficient to satisfy this decree, the defendant No. 2 shall have to pay to plaintiff for the satisfaction of this decree so much of the surplus sale proceeds unlawfully appropriated by him.

(3.) The appellant contends that he is entitled to recover Rs. 1,400 as balance of his mortgage decree from the respondent as he has unlawfully appropriated this money. The learned Subordinate Judge, however, who by be way, is the officer who had passed all the orders in the case including the decree in the appellant's mortgage suit overruled the appellant's contention and dismissed the execution case.