BANSIDHAR SHROFF Vs. THAKUR ASHUTOSH DEO GHATWAL

JUDGEMENT

(1.) This appeal and application arise out of execution proceedings in the Court of the Subordinate Judge of Deoghar in the Santhal Parganas. The order complained of, which is dated 6 April 1937, was passed in disposing of ah objection by creditors-decree-holders at whose instance the surplus profits of the Rohini Ghatwali Estate had been attached against certain items in the revised budget of receipts and expenditure for the estate. The Subordinate Judge was of opinion that the responsibility of the preparation of the budget and the determination of the surplus available for attachment lay with the revenue authorities and not the Civil Court. Accordingly he rejected the objection with-out recording definite findings on its merits. Aggrieved by this decision the decree, holders have presented this appeal and application in revision, in case it is held that an appeal does not lie. We are of opinion, that the order of the Subordinate Judge being an order passed under Section 47, Civil P.C., and determining matters in issue between decree- holders and judgment, debtors in the course of execution proceedings was appealable. In Civil Revision No. 260 of 1937, the rule will be discharged. "We shall proceed to consider the appeal.

(2.) The history of the case is that the principal respondent has been the ghatwal of Rohini since 1911, and it seems that he lost no time in incurring more debt than he was in a position to pay. In 1914 he made an arrangement with Major Agabeg where, by in consideration of an advance from the latter of money to pay off his creditors, he appointed Major Agabeg as his manager.

(3.) On 5 April 1917, on taking a further advance from Major Agabeg he gave him an ijara of the Basourhi Mahal consisting mainly of house property in Deoghar and Jasidih. The appellants are the holders of decrees against the ghatwal for debts, for the re-payment of which arrangement had not been made. They applied for the appointment of a receiver to realise the debts, due to them out of the surplus income of the estate and Major Agabeg objected to this. The matter came before this Court in Miscellaneous Appeals Nos. 242 and 215 of 1918 and on 25th May 1919, this Court framed a scheme of the nature of a composition in which the principal terms were that instead of putting the estate under a receiver, Major Agabeg should be placed in charge of the entire estate without remuneration; that for his own debts he would be entitled to appropriate the usufruct of the Basourhi Mahal and that as for the income and collections in respect of the rest of the estate, he should keep accounts and render them six-monthly to Babu Ramesh Chandra Sinha, Receiver, and make over to him the balance remaining, after deducting the collection expenditure of the rest of the estate other than the Basourhi Mahal, the Government revenue and road cess payable for the talukas other than Taluka Rohini (the latter items being payable by Major Agabeg himself).