LAWS(PVC)-1933-2-150

MACKINTOSH BURN LTD Vs. SHIVAKALI KUMAR

Decided On February 06, 1933
MACKINTOSH BURN LTD Appellant
V/S
SHIVAKALI KUMAR Respondents

JUDGEMENT

(1.) The application was first made to me on 29 August 1932. It is, in substance, an appeal from an order of the Master setting a proclamation of sale of two premises-40, Taltala Lane and 102, Corporation Street. The Master provided for the sale only of the defendant's beneficial interest in these properties. The plaintiff contended that he was entitled to have the entire interest in the properties sold in execution of his decree against the defendant. The facts that were presented to me on the application were these: In 1926 the plaintiff-company, at the request; of the defendant, carried out extensive repairs to the properties in question. On 10 February 1930 the defendant made part payment. On 18 June 1928 the plaintiff company filed a suit for the balance against the defendant described as a land owner residing at 102, Corporation Street. The defendant was apparently living in these premises. On 10th February 1930 the plaintiff-company obtained a decree for Rs. 19,020.

(2.) In August 1931 the plaintiff-company having failed on its attempt to obtain personal execution against the defendant proceeded to attach the two premises in question, the order for attachment being made on 25 August 1931. On 26 January 1932, there was a petition for sale. On 9 March 1932 the order for sale was made by the Master. Subsequently proceedings to settle the proclamation of sale under Order 21, Rule 66 were had before the Master, who settled the proclamation of sale in the form which is now challenged. The application before me was taken out on 4 August 1932. The affidavit in support on behalf of the plaintiff-company mentions in para. 2 that after the completion of the work, the plaintiff-company came to know that the premises in question were trust property.

(3.) It does not state when the plaintiff-company became aware of that fact, i.e., whether before or after suit. An affidavit in opposition was put in by the defendant alleging (para. 3) that the plaintiff-company was aware that the premises were trust property "before the institution of the suit and at all material times," The defendant challenged the liability to attachment of these properties, setting out in para. (5) the portions of the will by which the trusts were created and the defendant as well as two other persons, Sureshwari Dasee and Arunchandra Basu, were appointed trustees, the beneficiary being the family deity Sree Sree Janardan Jiu. On 29 August 1932, counsel appeared on the defendant's behalf and refused to claim an indemnity against the trust estate, implying that his client had been guilty of misconduct and was in default to the estate.