SASHI BHUSAN GHOSE Vs. BHUPENDRA NATH PAL

JUDGEMENT

(1.) This suit was instituted by the plaintiffs against six defendants stating that they had wrongfully deprived them of certain bricks which they had bought in a Court execution sale, that the bricks should be returned to them or in the alternative that they should be given adequate compensation for the loss of the bricks. The facts in short are these: Defendant 6 was a manufacturer of bricks. He became involved in debts and could not pay them off. Many suits were instituted against him in the year 1928. The first suit was instituted by defendants 3 and 4 on 19 April 1928 in the Court of the Subordinate Judge of Hooghly. That suit was decreed on 21 May for Rs. 1,830 and further that of the two kilns of bricks, the kiln No. 10 should remain subject to a first charge for the decree. The second suit was instituted by the plaintiffs on 23rd, May 1928 in the Court of the Munsif of Serampore. This suit was decreed ex parte on 26 July for Rs. 830. The third suit was instituted by defendant 2 on 16 June 1928 in the third Court of the Subordinate Judge, Hooghly. On 20 June the defendant attached the two kilns of bricks before judgment. While the charge on kiln No. 10, at the instance of defendants 3 and 4 was subsisting and the attachment of the two kilns by defendant 2 was subsisting on 27 July 1928, the plaintiffs applied for execution of their decree and on 5th September 1928 the two kilns of bricks were sold by the Munsif of Serampore and the plaintiffs purchased the same for Rs. 1,000 of which they deposited Rs. 158-11-0 only in cash and debited the balance against their decree. This Rs. 158-11-0, deposited by them in Court, was withdrawn and taken away by defendant 6. Meantime defendant 2 applied in the Court of the Subordinate Judge, Third Court, Hooghly, for execution of his decree. The two kilns were attached and the sale proclamation was issued. The plaintiffs appeared in that Court and made an objection on the ground that they had already purchased the two kilns. This application was dismissed and the two kilns of bricks were sold in auction in the Court, of the Subordinate Judge, 3 Court on 9 October 1928, and they were sold for a sum of Rs. 3,585 to defendant 1 and the money was distributed rateably to defendants 2, 3, 4 and 5 who were creditors, the plaintiffs not having applied for rateable distribution.

(2.) Then on 11 October 1928, plaintiffs instituted the present suit claiming either the bricks or damages for loss of the same. The Subordinate Judge who tried the suit held that while the other four creditors obtained decrees on sale of goods to the debtor defendant, the plaintiffs had only a promissory note whereupon they obtained an ex parte decree and the very day after they obtained a decree they applied for execution and in the sale proclamation they understated the number of bricks and purchased them at an inadequate price of Rs. 1,000 and then allowed without objection defendant 6 to take away the balance of Rupees 158-11-0 from the Court. Thereupon, the first Court held that the decree was not bona fide, but it was a collusive and fraudulent one and upon that finding the trial Court dismissed the suit. In appeal, the appellate Court held that the decree obtained by the plaintiffs was not collusive or fraudulent. Then the Court proceeded to try the different issues raised by the different defendants and rejected them all and decreed the suit for Rs. 1,000 against defendants 2, 3, 4 and 5 dismissing the suit against defendants 1 and 6.

(3.) As to the dismissal of the suit against defendant 1 who was the purchaser at the second sale both Courts held that he was a bona fide purchaser who purchased for a fair value and he is not liable to anyone. The Court of appeal does not state why the suit was dismissed against defendant 6. It is urged that in any event he should refund to the plaintiff Rs. 158-11-0 which he had withdrawn from the Court. The argument appears valid. The main argument on behalf of defendants 3 and 4 is that they, by the Court's decree of 21 May 1928, obtained the first charge on kiln No. 10 which was sold for Rs. 2,505 and out of those sale proceeds defendants 3 and 4 obtained Rs. 1,830 for their share as a first charge on that kiln. It is urged on the other side that the plaintiffs had no knowledge of the charge made by defendants 3 and 4 and therefore they are not bound by the same. But where a charge is created by a decree, no question of notice arises and a subsequent purchaser will be bound, irrespective of whether such purchaser has notice of the charge or not: seethe case of Hemlata Debi V/s. Bhowani Charan Ray (1934) 39 C W N 725.