HARENDRA KUMAR GHOSH Vs. GURUPADA BHOWMICK

JUDGEMENT

(1.) Gurupada Bhowmick, respondent 1 in this appeal, instituted a suit in the second Court of the Subordinate Judge at Dacca for recovery of Rs. 7,351 from respondents 2 and 3 on the basis of two hand-notes on 25 April 1931. On 27 April 1931 he applied for attachment before judgment of some immoveable properties belonging to respondent 3. The learned Subordinate Judge thereupon passed the following order: The defendants do show cause within a week from the service of notice upon them as to why they should not furnish security to the extent of Rs. 8,000. In the meantime let the properties said to belong to defendant 2 (respondent 2 in the appeal) be attached conditionally and provisionally and let the attachment continue till vacated.

(2.) On the next day the issue of the writ of attachment was stayed on defendant 2 giving undertaking that he would not transfer his properties. On 5 May 1931 a security bond for Rs. 8,000 executed by defendant 2 and the appellants before us was filed before the learned Subordinate Judge. The Court asked the Nazir to test the sufficiency of the security. On 12th May 1931, the Court found the security to be sufficient and the order directing attachment before judgment of the properties of defendant 2 was revoked. On 20 November 1931 the suit was decreed on compromise, the terms of which are as follows: (1) The plaintiff will get a decree against the defendants for the entire amount under claim with costs, but the decree will be made final by treating it as fully satisfied on payment by the defendants of an amount of Rs. 5,000 within 15 February 1932, and a further sum of Rs. 2,000 within September 1932. In default of payment the entire balance of the decretal dues will be realizable and interest will run on the said amount at the rate of Rs. 1-8-0 per cent. per month till the date of realization, which we will pay; (2) the surety bond executed by defendant 2 will remain in force so long as the money is not paid off.

(3.) Defendants 1 and 2, however, did not pay the instalments as directed in the decree. Thereupon several execution cases were started against defendants 1 and 2, the last of which was disposed of on 25 May 1935. By this execution proceeding the, sum of Rs. 2,000 was realized. On 26 September 1935, the decree-holder filed an application in the Court of the Sub ordinate Judge against defendants 1 and 2 as well as the appellants who stood sureties for realization of the balance of the decretal amount. The prayer in this petition is as follows: Notices may be issued upon the sureties and the judgment-debtors 1 and 2. Then the immoveable properties mentioned in the Schedule annexed to the petition in the ownership and possession of defendants 1 and 2 and the sureties may be attached and then the attached properties of defendants 1 and 2 may be sold first for satisfaction of the decretal dues and in case the entire amount was not satisfied then simultaneously the attached properties of the sureties may be sold in auction and the entire decretal amount may be realized.