CHUNILAL JIVANLAL SHAH Vs. PIRA MIYAJI GHANCHI

JUDGEMENT

(1.) The plaintiff in this case obtained a decree in Suit No. 227 of 1920 against the trustees of the deceased Dwarkadas Parshottam and in execution of that decree he attached certain debts which were alleged to be due to the deceased Dwarkadas. Among those debts, there was a debt of Rs. 490 said to be due by the present defendant to Dwarkadas. The defendant was served with a notice of the attachment of that debt and he filed his statement in the Court on November 18, 1921, contending that the amount actually due by him to Dwarkadas was Rs. 21 and not Rs. 490. After certain adjournments the executing Court made the following order on January 28 :- Public notice to be issued under Order XXI, Rule 66, to sell the attached dues in possession of the third person, belonging to the deceased defendant and an auction warrant to be issued with the Nazir's order.

(2.) The attached dues included this particular debt. The plaintiff purchased this particular debt at the auction sale and filed the present suit to recover the debt from the defendant. The defendant pleaded that the amount claimed by the plaintiff was not due but a much smaller sum was due. In the trial Court the following issue was raised : "Is not the Court's sale dated March 11, 1922, conclusive and binding upon the defendant ?" The finding on this issue was that the sale was conclusive as to the amount due, and accordingly the plaintiff's claim was decreed. The defendant was not allowed to question the amount said to be due by him to the deceased Dwarkadas Parshottam.

(3.) The defendant appealed to the District Court of Ahmedabad and the learned Assistant Judge who heard the appeal also accepted that view and dismissed the appeal. The learned appellate Judge observed that.- The only point which was argued in appeal was, that there was no inquiry made under Order XXI, Rules 53-62, of the Civil Procedure Code and that there was no order passed by the Court, determining whether the debt existed or not.