GURUSHANTAPPA SANGAPPA HOSKERI Vs. GURAVA MADIVALLAPPA

JUDGEMENT

(1.) It appears that, in a certain insolvency matter, a composition was effected between the insolvent and his creditors, which was embodied in an order passed by the Court, Exhibit 38, on June 12, 1920. The debtor agreed to pay a certain proportion of his debts by instalments amounting to Rs. 10,000 on flue dates with interest agreeably to the terms mentioned in the proposal. One Gurushantappa Hoskeri, on April 15, 1920, agreed by Exhibit 61 to personally pay the said Rs. 10,000 with interest as per terms contained in the proposal, and by the terms of the bond he also mortgaged the property mentioned therein as security for his liability. The debtor defaulted and the creditor sought to execute against the surety's property, under Section 145 of the Civil Procedure Code, and, on June 24,1924, an order was made that a warrant of attachment should issue against the immovable property of the surety as described in the surety bond for the recovery of the amount due.

(2.) On August 28, 1924, the sale of the property was ordered. Next day the surety presented an application, Exhibit 74, under Order 21, Rule 2(2) and notice was issued to the creditor. After hearing the parties, the Judge held that the adjustment set up in Exhibit 74 was found not proved, and the surety then asked for postponement of the sale under Order 21, Rule 83, to enable, him to raise the amount of the decree by private sale or mortgage or lease and asked for a certificate. The Judge declined to accede to the application, as the creditor objected to any delay; and, on October 14, 1924, directed that execution should proceed.

(3.) The surety has appealed against that order on various grounds. He objects to the finding of the Court that the adjustment has not been proved, and the finding that Mr. Kambli, the pleader for the decree-holder, who was appointed one of the Panch for the adjustment of the decree, could not be compelled to give evidence without the permission of and against the will of his client. We think it clear on the evidence of the surety himself that there was no adjustment of the claim of the judgment-creditor, so that it does not really make very much difference whether Mr. Kambli was allowed to give evidence or not; but it would appear that the decision on that point of the Subordinate Judge was right.