RAM PRASAD SINGH Vs. BENARES BANK LIMITED

JUDGEMENT

(1.) Ram Prasad Singh appeals against an order passed by a single judge of this Court under the following circumstances. The appellant was one of three judgment-debtors in a decree obtained by the respondents (the Benares Bank, Limited), which decree was passed ex parte, on 18th of August, 1917, by the court of the Subordinate Judge of Benares. Between November, 1917, and April, 1918, the Bank got the decree transferred for execution to Patna, the appellant residing within the jurisdiction of the district court of that place, and immovable property belonging to the appellant was attached in execution of the decree. On 23rd of June, 1918, Ram Prasad Singh brought a suit against the Benares Bank in the court of the Subordinate Judge of Benares; the reliefs sought were that the decree of 18th of August, 1917, be set aside and that the Bank be restrained from proceeding against the property of the plaintiff, After the institution of the suit, and before it came on for trial, Ram Prasad Singh applied to the Court for the issue of an injunction restraining the Benares Bank from proceeding further with the execution of the ex parte decree. This prayer the learned Subordinate Judge granted, but only on condition that Ram Prasad Singh should furnish security, to the full amount of the decree, for its due performance in the event of his suit being dismissed. Ram Prasad Singh appealed to this Court against the imposition of this condition, his appeal was admitted on 27th of July, 1918, and registered as first appeal from order no.. 119 of 1918. It had not yet been set down for hearing when on 15th of November, 1918, Ram Prasad Singh presented an application supported by an affidavit sworn the previous day. This application was presented, in the ordinary course of business, to a single judge of this Court; it asked that the Benares Bank might be restrained from continuing the execution proceedings at Patna until the disposal of the pending first appeal from order. It was represented that there was no need for the taking of security from the petitioner, because the property taken in attachment by the Patna Court would remain under attachment and all that was asked was a postponement of the sale. The order passed was: "Stay meanwhile; let notice go to the other side," The learned judge who passed this order had not been informed that on 14th of November, 1918, the very day on which the affidavit laid before him, was sworn, the Court at Patna had struck the execution proceedings off its file by reason of some default on the part of the local agent or representative of the Benares Bank. When the agents of the said Bank sought to continue the execution proceedings the Court at Patna held itself to be unable to take any action by reason of the ex parte order passed by this Court on 15th of November, 1918, and refused even to renew the attachment. On this the Benares Bank presented a petition to this Court supported by affidavit, on 7th of December, 1918, representing that the ex parte order had been obtained from a judge who was ignorant of an essential fact in the case and that the Bank was now left without any security. The only relief in terms asked for was that the hearing of Ram Prasad Singh s application of 15th of November, 1918, should be expedited. When this petition was laid before the learned judge who had passed the order of that date, he pointed out that the Bank would not. be protected against any alienation which Ram Prasad Singh might make of the property at first attached by the Patna Court, unless an injunction were issued restraining him from making such alienation. His order purports to direct the application of the Benares Bank to be amended in this sense; but no actual amendment was made. The important point is, however, that the Bank s prayer for the expediting of the hearing of the application of 15th of November, 1918, was granted; that application was ordered to be set down for disposal on 9th of December, 1918, along with the Bank s application of 7th of December, 1918. The learned judge after hearing both parties, and having no suggestion before him that either party desired an adjournment for any purpose, passed orders dealing with both the applications then before him, i. e,, Ram Prasad Singh s application of 15th of November, 1918, and the Bank s application of 7th of December, 1918, In substance he ordered three things: (a) that the hearing of first appeal from order No. 119 of 1918 be expedited; this he could not do of his own authority, but he obtained an order from the Chief Justice to that effect. (b) that the Benares Bank might proceed with the execution of their decree in the Patna Court, so far as taking out attachment of Ram Prasad Singh s immovable property; but should not take steps to bring any of his property to sale before the disposal of the aforesaid first appeal from order. (c) that until the disposal of the said appeal, or until this Court might see fit otherwise to direct Ram Prasad Singh should not alienate any of the property which had been under attachment by the Patna Court prior to the 14th of November, 1918.

(2.) This order was passed in the presence of both parties, duly represented by counsel, and a formal injunction to the same effect was also issued for service on Ram Prasad Singh per-actually.

(3.) This injunction was eventually returned unserved, the ministerial officer reporting that he was unable to find that gentleman at his ordinary place of residence. Almost immediately after this ineffectual attempt at personal service, that is to say, on 3rd of January and 4th of January, 1919, Ram Prasad Singh executed two sale-deeds by which ho purported to convey certain property, including some of the property affected by this Court s order of 9th of December, 1918, to one of his secured creditors. These deeds were registered together on 4th of January, 1919, and thus came to the knowledge of the agents of the Benares Bank.