MAZHARUL HAQ Vs. RAGHUBER SINGH

JUDGEMENT

(1.) The respondents obtained a money decree against one Zafarullah. In execution of that decree in execution case No. 54 of 1935, Zafarullah was arrested. When brought to Court he intimated that he would file an application for adjudication as an insolvent and in accordance with the provisions of Section 55 (4), Civil P.C., one Razaq Mian stood surety for him. In the surety bond Razaq hypothecated certain properties belonging to him. Zafarullah did file an application for insolvency, but it was dismissed by the District Judge. On appeal to the High Court, the order was confirmed. Soon after the disposal of that insolvency case by the District Judge, the decree-holder filed on 5 March 1937 an application for execution of the decree against Razaq, the surety. On 5 April 1937, notice under Order 21, Rule 22 was issued on Razaq fixing 26 April 1937 for his appearance.

(2.) On 26 April 1937, Razaq appeared and filed an objection mainly on the ground that the application for execution was not maintainable against him as the provisions of law had not been complied with. On the same day the Court issued a notice against Razaq calling upon him to produce the judgment-debtor and also to show cause why the execution should not proceed against him. On 22nd May 1937, the date fixed in the notice, Razaq neither produced the judgment-debtor nor shewed cause; but he filed an application for time and it appears that time was allowed and the case was adjourned to 12 June 1927.

(3.) On 12 June the Court issued an order of attachment of the properties mentioned in the security bond. In the meantime, the execution proceedings were stayed pending the disposal of the High Court appeal arising out of the insolvency proceeding. As the execution proceeding was stayed, Razaq did not want to proceed with his objection which was dismissed for non-prosecution on 21st September 1937. After the High Court appeal was disposed of, the decree-holder made an application to continue the execution proceeding which was allowed. On 4 May 1938, after the sale proclamation had been issued Razaq died. Thereafter, on 17 May 1938 his legal representatives appeared and filed an objection stating that the execution could not proceed against them. This objection was allowed by the Subordinate Judge on 24 June 1938.