HUKAMCHAND KASLIWAL Vs. RADHA KISHEN MOTI LAL CHAMARIA

JUDGEMENT

(1.) This is an appeal by Sir Hukamchand Kasliwal, who was one of the plaintiffs in the suit, and Deokissen Bhattar, who was brought on the record on the death of father. Harkissondas Bhattar, the other plaintiff in the suit, against a decree of the Chief Court of Oudh, dated 29 November 1926, which varied a decree, dated 30 April 1925, of the Subordinate Judge of Unao. The suit was brought against 4 defendants , viz.: (1) The Pioneer Mills, Ltd.; (2) The Tata Industrial Bank Ltd.; (3) Bilas Roy Hurdut Roy, a firm which is now represented by the respondents Lala Ram Narain, Lala Radha Kissen, Lala Ganga Prasad and Lala Hari Prasad and (4) the firm of Radha Kissen Moti Lal Chamaria. The suit was brought or 10 February 1923, in the Court of the Subordinate Judge of Unao.

(2.) By an order of 4 June 1923, the High Court of Calcutta directed the Pioneer Mills Ltd. (hereinafter called the company) to be wound up, and by a subsequent order the High Court granted sanction for the continuance of the suit at Unao against the liquidators of the company. All the assets of the company were sold by public auction and the sale proceeds amounting to Rs. 9,85,000 are now held by the liquidators.

(3.) The plaintiffs by their plaint, prayed as follows : "(1) For a declaration that the defendant company's factory at Unao, together with the laad, plants, machineries, implements, structures and buildings and its stock-in-trade at Unao stood charged with the repayment of the amount which might be found due to the plaintiffs for the advances made to the defendant company as aforesaid. " (2) For a declaration that the plaintiffs' claim herein was entitled to priority over the alleged claims of the defendants, the Tata Industrial Bank, Radha Kisen Moti Lal Chamaria and Bilas Roy Hurdut Roy. "(3)That in default of payment the said mortgaged properties or a sufficient park thereof he sold by and under the direction of the Honourable Court, and the sale proceeds, after deducting thereout the costs of such sale to first applied towards the payment of the amounts of the plaintiffs' claim, and the balance, if any, be held subject to the further order of the Honourable Court. "(4) For the costs of the suit,"