BANDHU ROY AND OTHERS Vs. HANUMAN SING AND OTHERS
LAWS(CAL)-1869-7-29
HIGH COURT OF CALCUTTA
Decided on July 30,1869

BANDHU ROY AND OTHERS Appellant
VERSUS
HANUMAN SING AND OTHERS Respondents

JUDGEMENT

- (1.) Hanuman Sing, having obtained a decree against the plaintiff, applied to the Court for execution by attachment of a decree in a suit of Bandhu and others against Karu Mahanto and others for rupees 948. The Court made an order upon this application, and under section 236 of Act VIII of 1859 issued a written order prohibiting the now plaintiff Bandhu Roy from receiving, and Karu Mahanto from making payment of the amount decreed until the further order of the Court. This order was served as prescribed by section 239, by fixing up the order in some conspicuous part of the Court-house and by delivering copies of the written order to the judgment-debtor. The attached decree was sold by public auction after the usual proclamation, and realized rupees 20 only. The plaintiff's contention is that the sale was irregular, inasmuch as the prohibitory order under section 236 was not served on him. But the Judge, I think, rightly holds that the service of the prohibitory order having been in accordance with the provision of section 236 was legal and regular, and therefore dismisses the suit. The plaintiff is not entitled to the particular relief which he seeks in this suit, and we must therefore dismiss the present appeal. There seems however strong reason to suppose that the sale of this decree has worked a great oppression on the plaintiff.
(2.) The facts are not clearly stated in the judgment of either of the Courts, but I am led to infer that the defendant having caused the decree to be put up for sale, bought it for rupees 20, and shortly afterwards realized by sale of the property of Karu Mahanto rupees 975. Upon that I desire to observe; first, unless there was some very good reason of which nothing appears, the Court in executing the defendants' decree ought not to have sold the plaintiff's decree against Karu Mahanto, but ought to have required the defendants to proceed to enforce that decree by its own process, appointing a manager under section 243 if necessary. By so doing the Court would have worked out the plaintiff's lien under the attachment and secured the rights of all parties. The object; of allowing a decree-holder to attach and sell his debtor's property is to ensure that the property may be realized or turned into cash in order to satisfy the decree.
(3.) If a money-decree is attached, unless it be shown that there are no means of realizing the amount of the decree or no prospect of doing so within a reasonable time, or except at an expense to which the attaching creditor ought not to be put, to sell the decree is not to realize the debtor's property but to sacrifice it by selling the chance of realizing it. The whole spirit of Act VIII shows that in executing decrees the Court is not to lose sight of the interest of the judgment-debtor. In securing payment to the decree-holder, it is the duty of the Court to do so without any unnecessary injury to, or sacrifice of, the property of the debtor. A very large discretion for that purpose is reposed in the Court particularly by section 243.;


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