KUMAR KRISHNA MITTER Vs. AMULYA CHARAN MITTER

JUDGEMENT

(1.) This is an application by Kumar Krishna Mitter, decree-holder in Suit No. 163 of 1914, asking that a fund of Rs. 4,650-2-7 lying in the hands of the Accountant-General of this Court to the credit of the said suit be, after payment of the petitioner s costs, divided rateably between the petitioner and Ram Chandra Ray Chaudhuri, execution-creditor in Suit No. 453 of 1910. The facts are as follows: Property which had belonged to Hari Das Mitter, deceased, was subject to a mortgage, dated 19th December 1901, in favour of Byomkesh Chuckerbutty. The mortgagee instituted a suit on his mortgage (No. 179 of 1911) making the representaives of Hari Das Mitter party defendants. The final decree in that suit, dated 15th January 1913, ordered a sale of the mortgaged property. The sale took place on 2nd May 1914, and after making the first and second payments prescribed by Section 73(1), proviso (c), (It does not appear that there were any subsequent incumbrances), there remained a sum of Rs. 4,650-2- 7 as surplus sale-proceeds.

(2.) On 6th April 1914, the present petitioner obtained a decree in this Court for Rs. 1,644-15 9, interest and costs against the estate of Hari Das Mitter. On 18th June 1914, he applied for execution and attached the surplus sale-proceeds above mentioned. In November last, he applied to have the said fund transferred to the credit of his suit, No. 163 of 1914, and it was so transferred under an order of 2nd December 1914. That transfer was made without notice to other creditors. The certificate of the Accountant-General, which was the only certificate required on the application for transfer, showed no attachment or other impediment as regards that fund.

(3.) On 22nd December 1908, Ganga Das Mahta had obtained a decree in Small Cause Court Suit No. 22785 of 1908, against the estate of Hari Das Mitter for Rs. 1,684-2-0, including, costs and interest up to 26th April 1911. The statement in paragraph 13 of the present petition, that that was a personal decree against Amulya Charan Mitter and Bireshur Mitter, is incorrect. That decree was transferred to this Court for execution on 1st May 1911, and on 28th August 1911, that execution-creditor attached the mortgaged property.