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Murhari Narayan Teli Vs. Narayan Balvant Kasture - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case Number Second Appeal No. 683 of 1933
Judge
Reported inAIR1935Bom416; (1935)37BOMLR747; 159Ind.Cas.170
AppellantMurhari Narayan Teli
RespondentNarayan Balvant Kasture
DispositionAppeal allowed
Excerpt:
civil procedure code (act v of 1908), order xxi, rule 53 - decree-attachment of decree-execution of the decree-sale-proceeds to be retained in court.;where a decree under execution has already been attached by a judgment-creditor of the decree-holder under order xxi, rule 53, of the civil procedure code, 1908, it is open to the court to proceed with the execution ; but the amount realised in execution is to be retained by the court for the benefit of the attaching creditor. - .....paid to him but will have to be deposited in court for the benefit of his judgment-creditor. i think this is the proper construction of this rule. supposing execution is not allowed of this decree till the attachment continues in force, it is possible that the execution of this decree may be time-barred and the appellant's judgment-creditor himself might not be able to recover the amount of his decree. if, however, this decree is executed to the extent of the money claimable thereunder being deposited in court, the rights of the appellant's judgment-creditor will not be damaged in any way. on the other hand, there will be a specific amount lying to his benefit in the court which he can take away in execution of the decree in his favour and the balance may be paid over to the present.....
Judgment:

Divatia, J.

1. I think the decree of the lower appellate Court in this case should be reversed. The appellant is the judgment-creditor. The decree has. been attached by his own creditor. The question is whether the appellant can now execute the decree which he has got in his favour. The trial Court held that he is entitled to execute the decree in his favour subject to this that the amount realised should be deposited in Court for the benefit of the attaching creditor but that the execution of the appellant's decree should proceed. The appellate Court has, however, come to the conclusion that as the payment or adjustment cannot be recognised by any Court so long as the attachment remains in force under sub-r. (6) of Order XXI, Rule 53, this decree which the appellant has got in his favour cannot be executed at all during the pendency of the attachment.

2. I do not think that that construction of Order XXI, Rule 53, is sound. It is provided under sub-r. (I) (>) (it) of that rule that if the decree sought to be attached was passed by another Court, a notice may be issued to the Court which passed the decree sought to be attached requesting such other Court to stay the execution of its decree unless and until the holder of the decree sought to be executed or his judgment-debtor applies to the Court receiving such notice to execute its own decree. In other words, the execution is to be stayed until either the decree-holder of the decree sought to be executed or his judgment-debtor, that is to say, the present appellant, applies to the Court to execute its own decree. So that it is open to the present appellant, as the judgment-creditor of the decree he has got in his favour, to execute that decree even during the pendency of the attachment subject to this, however, that the amount realised by him by the execution of that decree will not be paid to him but will have to be deposited in Court for the benefit of his judgment-creditor. I think this is the proper construction of this rule. Supposing execution is not allowed of this decree till the attachment continues in force, it is possible that the execution of this decree may be time-barred and the appellant's judgment-creditor himself might not be able to recover the amount of his decree. If, however, this decree is executed to the extent of the money claimable thereunder being deposited in Court, the rights of the appellant's judgment-creditor will not be damaged in any way. On the other hand, there will be a specific amount lying to his benefit in the Court which he can take away in execution of the decree in his favour and the balance may be paid over to the present appellant.

3. I think, therefore, that the order of the lower appellate Court should be set aside and the order of the trial Court should be restored. The appeal is allowed with costs.


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