KESHAVLAL MADHAVJI Vs. BIBI SOGHRA

JUDGEMENT

(1.) This is an appeal from an order of the Subordinate Judge of Chapra allowing an objection in an execution case. The N.R. Coal Company brought a suit in the Court of the Subordinate Judge of Dhanbad in December 1924 for an account against a man named Sujait Khan, and his brothers, the claim against these persons being valued at nearly Rs. 80,000, and in the same month made an application under Order 38, Rule 5, Civil P.C., for attachment before judgment of some of their properties including a debt of Rs. 36,195-4-7, owed to them by two residents of the District of Saran, Bibi Soghra and her son Zafrul Haque. The application was rejected so far as it related to the debt. The High Court being moved in the matter directed on 21 May 1925, that if the defendants were to give security for the sum claimed in the suit, which counsel on their behalf stated would be given, its sufficiency would be considered by the Subordinate Judge and if it should be found sufficient there would be no attachment before judgment.

(2.) Security was furnished in respect of only a portion of the claim and it was accepted, and when the plaintiff asked for security for the balance the Subordinate Judge held that the claim for any additional security had been waived. On 22nd December 1925, a preliminary decree was passed in the suit. Another application for revision was made to the High Court by the plaintiff against the order of the Subordinate Judge with regard to the security and the High Court ordered on 11th May 1926, that the original undertaking given to the High Court on behalf of the defendants must be strictly fulfilled and that if security for the balance of the plaintiff's claim were not offered attachment before judgment must issue as originally claimed.

(3.) There was again default on the part of the defendants, and on 24 July 1926, the Subordinate Judge directed in the presence of the defendants the issue of attachment before judgment as originally prayed for. After that the record seems to have been sent to the High Court where it was required for another purpose. On another application by the plaintiff an order in the same terms was made on 17th July 1927. The notices to be served upon the defendants and upon the defendants debtors were delivered to the plaintiff on his request for service in Chapra. The notice was served on Sujait Khan on the 4 October. The question whether it was served also upon Bibi Soghra and Zafrul Haque on the 23 November is one of the questions for decision in the present case. In the meantime on 30 June 1927, Sujait Khan and his brothers obtained a decree for Rupees 28,900 in accordance with an award of arbitrators in respect of the debts sought to be attached.