MEHDI ALI KHAN Vs. CHUNNI LAL

JUDGEMENT

(1.) This is a defendants appeal arising out of a suit for sale on the basis of a security bond dated 11 July 1907, executed by the defendant-appellants. It appears that Mt. Faiz-un-nissa obtained a decree against Mt. Hanif-un-nissa from the High Court in appeal arising out of suit No. 37 of 1903. The decree was for about Rs. 63,000. Mt. Faiz-un-nissa sold her decree to Bansi Dhar, the father of the present plaintiffs for Rs. 40,000 Prior to these proceedings Mehdi Ali Khan and Abdullah Khan the appellants held a decree in suit No. 20 of 1902 for over Rs. 11,500 against Mt. Faiz un-nissa. In execution of their decree they attached the decree held by Mt. Faiz-un-nissa against Mt. Hanif-un-nissa. This sale took place after the attachment and therefore all claims under it were subject to that attachment.

(2.) The attaching creditors sought to execute the decree but the Court ordered that the decree should be executed by Bansi Dhar although when the sale proceeds are realised the decree of the attaching creditors should be discharged first. In execution of this decree some property was sold at auction on 26 October 1906 for Rs. 14,950 and bulk of it was purchased by strangers. One property, viz.: an Indigo Factory was purchased by Bansi Dhar himself. After this the judgment-debtor deposited nearly Rs. 6,000 in Court and later paid out of Court over Rs. 54,000. In t+his way the whole amount of the decree was paid off.

(3.) When Bansi Dhar wanted to take out the money from the Court he was ordered to furnish security before he took out the money (order dated 4 January 1907, p. 32). Similarly when Mehdi Ali Khan and Abdullah Khan applied to take out the money from the Court in discharge of their decree the Court ordered that without furnishing security they could not be allowed to do so (p. 35). After the passing of this order Mehdi Ali Khan and Abdullah Khan filed in Court a security bond dated 11 July 1907, which is printed at p. 41 and is the subject of controversy. On the filing of that security they were allowed to take out the whole of Rs. 14,950 realized by the sale of the property as well as a part of the amounts deposited subsequently.