KRISHNA CHANDRA BHOUMICK Vs. PABNA DHANABHANDAR CO LTD

JUDGEMENT

(1.) This appeal is on behalf of the judgment-debtor whose objection under Section 47, Civil P. C, has been rejected by the learned Subordinate Judge of Pabna. The appellant purchased on 26 June 1924, at a revenue sale, a zamindary which belonged to the Pakrasis. The Pabna Dhanabhandar Co. Ltd. which had not then gone into liquidation, had before the revenue sale advanced money to the Pakrasis on a mortgage of the said zamindary, At the date of the revenue sale and at all material times the position of the respondent company was that of a mortgagee. The appellant paid the whole of the purchase money which remained in deposit in the Pabna Collectorate.

(2.) The respondent company instituted on 7 July 1925 suit to set aside the revenue sale. To the said suit the appellant was defendant 1 and the Pakrasis defendants 2 to 11. The learned Subordinate Judge decreed the suit with costs against the appellant, which costs was assessed at Rs. 989-11-0. The appellant before us preferred an appeal to this Court which was dismissed on 23 May 1928, subject to the modification that the decree for costs against the appellant was set aside. An appeal was taken to His Majesty in Council by the appellant but it was dismissed and the appellant was directed to pay to the respondent ?247-16s-3d as costs. The net result was that the revenue sale was declared invalid, the decree for costs passed against the appellant by the Subordinate Judge was vacated and the appellant was directed to pay ?247-16s-3d as cost incurred by the respondent in England in resisting the appeal to His Majesty in Council. Shortly after obtaining the decree from the Subordinate Judge the respondent company applied for executing the decree for costs passed by the Subordinate Judge. The appellant moved this Court for stay. The material portion of the order passed on 18 February 1927 by this Court on the said application is in these terms: The opposite party will be entitled to execute this decree for costs as against the petitioner before us to be recovered out of the money now in deposit in the Collectorate, which the petitioner paid as purchase money for the sale of the property which has not been set aside, the money being now held to the credits of the petitioner.

(3.) The respondent company accordingly withdrew on 12 July 1927 from the said deposit a sum of money sufficient to cover their decree for costs, giving security for the due performance of the decree that may be passed by this Court. The appellant also paid revenue and cess amounting to Rs. 543-5-6 that fell due from the date of his purchase at the revenue sale. The respondent company has since gone into liquidation. The said company represented by the liquidator applied on 30 May 1932 for execution of the decree for costs awarded, by His Majesty in Council. The appellant preferred objections under Section 47 of the Code and of the many objections he preferred, only one is now for consideration before us, namely whether he is entitled to claim a deduction of the sum of money recovered on account of the decree for costs awarded by the Subordinate Judge, which decree was ultimately reversed, and of the sum of money paid by him on account of revenue and cess with interest. The Subordinate Judge overruled this claim assigning two reasons for his decision. He held that the appellant ought to have filed an application for restoration as soon as the High Court set aside the decree for costs passed by the Subordinate Judge and his claim was barred by limitation. He further held that the fact that the respondent company had gone into liquidation had introduced a complication and to allow the claim of the appellant would be to give him a preference.