SOURENDRA NATH MITRA Vs. SREEMATI TARUBALA DASI

JUDGEMENT

(1.) Miscellaneous Appeal No. 318 of 1926 has been preferred from an order passed by the Subordinate Judge, Second Court, Hughli, on the 28 July 1926, and Rule No. 851(m) has been issued by this Court in connexion with the said appeal. The petition upon which the said rule has been issued only prayed for stay of execution of the aforesaid order pending the hearing of the appeal, but the rule purports to call in question the validity of the order and directs a stay of its execution, pending the disposal of the rule, on certain terms as to furnishing of security. Evidently the rule is misconceived, or at any rate its terms are inapposite, but the matter is of no importance now as, in point of fact, the execution of the order was stayed on the requisite security being furnished, and the appeal and the rule are both pending and have come up for hearing together.

(2.) The facts which led up to these proceedings are these: The plaintiff-respondent Tarubala Dasi instituted a suit for recovery of Rs. 15,000 together with Rs. 1,000 more as damages against the two appellants Sourendra Nath Mitra and Khoka Lal Mitra and one Parul Sundari Dasi in the Court of the Subordinate Judge, Hughli, on the 23rd,March 1926. On the 30 June 1926 she applied for attachment of certain immovable properties of the appellants mentioned in the schedule to the application. The Subordinate Judge on the same day ordered the appellants to furnish security to the extent of the amount claimed in the suit or to show cause why the same should not be furnished on or before the 17 July 1926, and also passed an interim order for conditional attachment in respect of the said properties. The matter eventually came on for hearing on the 28 July 1926 when on hearing both the parties, the Subordinate Judge passed the order which is complained of in this appeal.

(3.) The Subordinate Judge appears to have been of opinion that the exigencies of the case demanded an order for security and on failure to furnish the same an order for attachment before judgment, and as the appellants attorney suggested that if there was to be any attachment at all a certain property, which for the sake of brevity he called the Kalachera property, might be attached, the learned Judge discharged the order by which the properties named by the plaintiff in the schedule to her application had been attached on the 30 June 1926 as stated above, and passed an order, the operative portion of which ran in these words: The mehal mentioned above, namely, Kalachera, shall be attached until further orders unless the defendants shall furnish security, i.e., Sourendra Nath Mitra shall furnish security to the extent of Rs. 10,000 and Khoka Lal Mitra to the extent of Bs, 500 within a week from to-day. The plaintiff shall take necessary steps for attachment of the mehal in the meanwhile.