J C GALSTAUN Vs. FEDINSHAW

JUDGEMENT

(1.) By two indentures of mortgage, one dated the 31 March 1921 in favour of Mr. Framroz Edulji Dinshaw and two others, and another dated the 28 June 1925 in favour of Mr. Framroz Fdulji Dinshaw alone, Mr. J.C. Galstaun borrowed 30 lacs and 2 lacs of rupees respectively on hypothecation of some immovable properties. In February 1926 the mortgagees having attempted to sell the mortgaged properties without the intervention of the Court on the strength of a covenant in the deeds, Mr. Galstaun instituted a suit in the Court of the Subordinate Judge at Alipore for a declaration that the mortgagees are not entitled to exercise that power of a sale and for an injunction restraining them from doing so and obtained a temporary injunction to that effect in his favour Thereafter the mortgagees instituted two suits in the High Court of Judicature at Bombay in its Original Jurisdiction for moneys due on the said mortgages being Suits Nos. 1418 and 1420 of 1926, on the basis of the personal covenants contained in them. On the 8 October 1926 decrees were passed in these suits, in the former for Rs. 2,12,686-3-0 and in the latter for Rs. 31,24,373-5-0.

(2.) Early in November last the two decrees were transferred by the Court which passed them : the decree in Suit No. 1418 of 1926 to the first Court of the Subordinate Judge at Alipore, and that in Suit No. 1420 of 1926 to this Court in its Original Jurisdiction.

(3.) On the 10 November 1926 an application was made by the decree-holders in the first Court of the Subordinate Judge at Alipore for attachment of the moveable properties of the judgment-debtor, and the learned Judge made an order for attachment under Order 21, Rule 30, Civil P.C. fixing 6 December 1926 for return and further orders, Thereafter on the objection of the judgment-debtor he passed further orders from time to time, allowing the judgment-debtor time to pay up the decretal dues. He eventually passed an order on the 17th November 1926 deferring the issue of the writ to the 27 November 1926 and on the last- mentioned date again deferred it till the 22 December, 1926. Against these two orders the decree-holders moved this Court and obtained a Eule which is Rule No. 1188 of 1926.