DARSAN SINGH Vs. BALDEO DAS

JUDGEMENT

(1.) This is an Appeal by the judgment-debtor against an order rejecting his application under Section 47, Civil P.C., in execution proceedings.

(2.) The facts are as follows. In the year 1931 one Binjraj and others brought a suit on the basis of a handnote against the Ranis of Lachhmipur and the appellant Darsan Singh. In 1933 a decree was obtained against the Ranis, but not against Darsan Singh, but in appeal, on 4 May 1937, the High Court decreed the suit against all. In the year 1935, the same plaintiffs brought a similar suit in the Calcutta High Court against Anant Prasad as a surety. On 21 June 1987, that suit was compromised, and under the terms of the compromise an instalment decree was passed for a sum of Rs. 13,000. The plaintiffs, moreover, assigned their decree against the Ranis and Darsan Singh to Anant Prasad, and Anant Prasad charged the transferred decrees for satisfaction of the decree against him. It was provided that the charge could be enforced by execution without separate suit.

(3.) This decree was transferred to Bhagalpur for execution and in Execution case 186 of 1938 Binjraj and others sought to proceed at Bhagalpur against the properties of Anant Prasad. On 6 December 1938, Anant Prasad took the objection that the decree could only be executed by enforcement of the charge. This objection succeeded, and on 7 July 1939 the execution case was dismissed. According to the execution register, the result was communicated to the Calcutta High Court on 12 September 1939. Meanwhile there was an appeal to the High Court, and on 28 February 1940, the High Court held that there could be no execution against the personal property of Anant Prasad unless and until an attempt had first been made to execute the decree by enforcement of the charge.