MONO MOHAN Vs. UPENDRA MOHAN PAL

JUDGEMENT

(1.) This is an appeal by one Mono Mohan alias Panchkari Chowdhury, a judgment-debtor in a decree for money which was obtained against him by the decree-holders, Upendra Mohan Pal and others who are the respondents in this appeal. The facts necessary to be stated are the following: The suit decree was for a sum of Rs. 6,192 and the decree was passed in June 1931. The first application for execution was dismissed for default on 25 August 1931 under circumstances which do not appear in the papers before us. It appears however that on the same day, that is to say on 25 August 1931, a fresh application for execution was made on behalf of the decree-holders.

(2.) In the course of the proceedings started on this second application some properties belonging to the judgment-debtor were put up for sale and it also appears that the decree- holders obtained the permission of the Court to bid at the proposed sale. For reasons which do not appear in any of the papers before us the second application for execution was also allowed to be dismissed for default on 28 May 1932. Two days after, that is to say, on 30th May 1932, a third application for execution was made and the orders that were subsequently passed in the proceedings that followed are the orders which form the subject-matter of this appeal. The prayer that was made on behalf of the decree-holders in the third application for execution was that the decretal amount might be realised by the arrest and detention of the judgment-debtor in civil prison. On this application a notice was issued upon the judgment- debtor and he, on 20 June 1932, put in an objection purporting to be one under Section 47 and Order 21, Rule 40 of the Code. Amongst other matters that were stated in the said petition of objection, there was a statement to the effect that properties of the value of a lac of rupees belonging to the judgment-debtor were held in mortgage by the decree-holders for a small sum of money and it was further stated that there was a prayer for the sale of the said properties in a certain execution case started at the instance of some other parties for realization of a sum of Rs. 16,000 and it was also stated that the decree-holders could very well attach those properties and apply for rateable distribution in order to have their claim satisfied.

(3.) It was further clearly stated in the said petition that the properties having been attached as aforesaid, he was unable to raise money by selling the same and he accordingly prayed that he might be released from the liability of being arrested. The matter remained pending for several months till on 12 November 1932 a further petition was filed on behalf of the judgment-debtor in which it was repeated that the judgment-debtors property worth more than a lac of rupees was under mortgage to the decree-holder for a sum of Rs. 7,500 only and it was further asserted that at the instance of a certain creditor an insolvency proceeding had been started against the judgment-debtor in the Court of the District Judge of Chittagong and that on account of those proceedings he was entitled to protection under Section 55, Civil P.C. On 12 November 1932, on which date, as aforesaid, the latter petition was filed, the case was taken up by the Subordinate Judge, who, after dealing with another objection arising out of the fact that one of the decree-Holders was dead, an objection with which we are not concerned at the present stage, proceeded to dispose of the judgment-debtor's objection as to his arrest and detention in these words: I see no reason to stay execution proceedings for the reasons stated in the judgment-debtor's petition. The latter has not yet applied for insolvency. The objections raised by the judgment-debtor are therefore disallowed