Amberendu Chuckarbutty and others vs Moolchand

Nigam, J.C.

Moolchand Bijabargi obtained decree No. 1186 of 1950 for Rs. 76,000/- and odd from the court of the Senior Subordinate Judge, Ajmer, on the foot of a mortgage against Satyendra Nath Chuckerbutty. An application in execution was filed and a request was made that the mortgaged property be put to sale. The judgment-debtor''s four sons filed Civil Suit No. 24 of 1951 for a declaration that the mortgaged property could not be sold in execution of the decree in question. The plaintiffs filed an application for an injunction restraining the decree-holder from putting the property to sale. The learned Senior Subordinate Judge rejected the application. The plaintiffs appealed to this Court (Civil (Misc.) Appeal No 137 of 1952). In that appeal, an application for an interim injunction was filed: This was disposed of by my order, dated 27-12-1952. I then directed that on the applicants'' undertaking to pay in the trial court a sum of Rs. 4,500/- a year in four equal quarterly installments the temporary injunction prayed for should issue.

On 11-3-1952, (1953?) the decree-holder filed an application for permission to withdraw the sum of Rs. 2,250/- that had been deposited in the trial court in accordance with this Court''s direction. This application was rejected.

The appeal (No. 137 of 1952) was disposed of finally on 2-7-1953. I then directed the issue of an injunction restraining the decree-holder from executing his decree for a period of four months and such additional period as may be equal to the adjournments taken by him. This injunction was to be issued only on condition that the appellants deposited in court a sum of Rs. 4,800/- in four equal instalments, the first installments being deposited on 10-7-1953. It was further directed that the amounts deposited by the appellants hitherto and those to be deposited in future may be paid to the decree-holder on his undertaking to refund them if the plaintiffs finally succeeded in their case and to take them in satisfaction of his decree against Satyendra Chuckerbutty if the plaintiffs'' suit failed. In case of default in furnishing the securities, the injunction application was to stand dismissed with costs.

Subsequently the decree-holder filed an application for the payment to him of the sum of Rs. 2250/- deposited by the appellants. The learned Senior Subordinate Judge by his order dated 3-8-1953 directed the payment of the money to defendant No. 1, i.e., the decree-holder on his undertaking to refund the money if the plaintiffs finally succeed in their case. Against that order, Amberendu Chuckerbutty and three others, plaintiffs, have come up in revision. I have heard the learned counsel for the parties.

The contention of the learned counsel for the applicants is that the order of this Court, dated 2-7-1953 must be taken as one whole unit and must not be broken into parts. The suggestion of the learned counsel is that once the plaintiffs failed to furnish the securities required of them and were not granted the injunction prayed for, the whole order fell through and the plaintiffs were automatically entitled to the refund of the amounts deposited by them. I am of opinion that the order has to be interpreted as it stands. It directed that the amounts deposited by the appellants may be paid to the decree-holder on his undertaking either to refund them or to take them in part satisfaction of his decree. There was no direction that in case the plaintiffs failed to furnish the securities, the amounts were to be refundable to them. The case of default was considered by this Court and it was directed that in case of default the injunction application was to stand dismissed with costs. It was not directed that in that case the amounts were to be refundable to the plaintiffs.

I am, therefore, of opinion that the order of the learned Senior Subordinate Judge was in furtherance of this Court''s order, dated 2-7-1953 and can therefore be not interfered with in this revision. I would, however, like to draw the attention of the learned Senior Subordinate Judge to the fact that his order does not mention that the decree-holder is also to give an undertaking that in case the plaintiffs'' suit fails, the amounts taken by the decree-holder are to be applied towards the satisfaction of the decree.

In this revision application, the parties will bear their own costs. The revision is dismissed.