CHHOTE LAL Vs. KEDAR NATH

JUDGEMENT

(1.) The facts of this case are briefly these. One Kedar Nath of Agra was adjudicated insolvent in Calcutta under the Insolvent Debtors Act, on the 4 of September, 1906. On the 11 of January, 1910, Kedar Nath obtained an order for personal discharge, but he continued to be an adjudicated insolvent so far as the property was concerned. In 1921 Kedar Nath sued one Chhote Lal for recovery of a certain sum of money on the ground that it was due to him for certain services rendered to Chhote Lal. He obtained a decree on the 19 of January, 1922. On the 11 of February, 1922, Kedar Nath sold the-decree to Baijnath. Chhotfe Lal filed an appeal against the decree and made an application to the court for the stay of execution pending the appeal on the ground, inter alia, that Kedar Nath was an undischarged insolvent. It appears, however, that the parties came to terms on the 22nd of February, 1922. A compromise was filed in the execution department by which, on payment of a sum of Rs. 2,300 to Baijnath, the transferee, the decree was taken as fully satisfied. The appeal was also dismissed on an application by the appellant, Chhote Lal. The official assignee then, for the first time, intervened on the 3 of March, 1922. On that date he made an application to the learned Subordinate Judge of Agra asking that his name might be substituted in place of Kedar Nath and that he might be permitted to execute the decree.

(2.) We may point out here that the learned Judge of the lower appellate court has made a mistake in saying that the application was made on the 21 of February, 1922. That was the date on which the official assignee in Calcutta signed the application which was actually filed on the 3 of March, 1922. The application of the official assignee was dismissed on the 4 of March, 1922, by the learned Subordinate Judge on the ground that the decree had been satisfied and there could be no substitution of names. On the 24 of March, 1922, the official assignee made an independent application for execution of the decree which had been obtained by Kedar Nath. Chhote Lal came in and pleaded that he had satisfied the decree and it could not be executed against him. He led evidence before the court of the first instance to prove the factum of payment. The learned Subordinate Judge came to the conclusion that there was a payment, but that payment could not exonerate Chhote Lal. On appeal, the District Judge came to the same conclusion and dismissed the appeal of Chhote LaL.

(3.) In this Court it has been contended on behalf of Chhote Lal that having regard to the law as has been interpreted by various rulings of court, he was not to be called upon to make a; second payment.