DURGA PROSAD CHAMARIA Vs. SECRETARY OF STATE

JUDGEMENT

(1.) On 19 April 1926, the appellant Durga Prosad Chamaria, obtained a decree against respondents 2 to 4 Radha Kissen Chamaria, Mati Lal Chamaria and Srimati Anar Dei Sethani in Title Suit No. 61 of 1923, in the Court of the Subordinate Judge at Howrah, for Rupees 8,61,000 with interest at a certain rate up to the date of realization. Respondents 2 to 4 made certain payments from time to time towards the satisfaction of this decree, but these payments did not satisfy the entire decree. On 1 April 1933, the Certificate Officer of Howrah attached this decree under Section 19, Clause 1, Public Demands Recovery Act, in execution of a certificate filed in Certificate Case No. 1 M of 1933/34 for realization of about Rs. 3,86,000 due as arrears of income-tax to respondent 1, the Secretary of State for India in Council, from the appellant. On 17 March 1934, respondent 1 applied to the Subordinate Judge, Howrah, to whom notice of attachment was given, to realize the amount due under the attached decree by executing the attached decree against respondents 2 to 4. The appellant was also made a party to this application for execution. On receiving this application, the Subordinate Judge, on 8 May 1934, ordered notice to be issued on the appellant as well as respondents 2 to 4 to show cause why the execution proceedings should not be carried on. This notice was issued on 7 July 1934, and was served on the appellant as well as on respondents 2 to 4 on 27 June 1934. On 21 June 1934 respondents 2 to 4 filed an application under Order 21, Rule 2, Sub- rule 2, Civil P.C., for recording an adjustment of the attached decree between them and respondent 1, and its full satisfaction on the basis of the said adjustment. This petition was registered as Misc. No. 59 of 1934.

(2.) On 27 June 1934, in pursuance of the notice served on him on that day, the appellant filed an objection to the execution of the attached decree under Section 47, Civil P.C. This objection was registered as Misc. Case No. 67 of 1934. After several adjournments both these cases came up for hearing before the learned Subordinate Judge on 26 January 1935. On that day the learned Subordinate Judge framed certain issues after hearing the parties. On 28 January 1935, he allowed the petition of the judgment-debtors under Order 21, Rule 2, sub-r. 2, and recorded the adjustment and full satisfaction of the attached decree and dismissed the appellant's objection under Section 47, Civil P.C. Hence these two appeals by the original decree-holder Durga Prosad Chamaria.

(3.) M.A. No. 252 of 1935.-This appeal arises out of the petition of the objection filed by the appellant on 27 June 1934 under Section 47, Civil P.C. The material objections are these: (a) That the Secretary of State for India in Council is not entitled to attach and execute the decree as the certificate in execution of which the decree had been attached had been cancelled, (b) That before attachment the appellant had assigned his right, title and interest in the decree to one Keshardeo Chamaria on certain terms, one of these terms being that he would get a refund of Rs. 1,00,000 from the assignee on the happening of certain events.