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Govindji Viramji Vs. Sakharam Govind - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case Number Second Appeal No. 441 of 1910
Judge
Reported in(1912)14BOMLR527
AppellantGovindji Viramji
RespondentSakharam Govind
Excerpt:
.....paid to g. s then sued g to recover the amount so paid. the lower court applied section 285 of the code and decreed the claim :-;rejecting the claim, that the suit was governed not by section s85 but by section 324a of the civil procedure code of 1882; and that the prohibitory order of the dhulia court could not bind the collector in the presence of the provisions of s- 324a under which alone ho was authorized by the statute to act and was acting; and therefore that order-was ultra vires.;in virtue of section 324a, the collector held the amount 'at the disposal of the court' which had transferred to him the decree for execution, that is, the court at chalisgaon. that court again was bound to dispose of the amount in the manner and for the purposes mentioned in the third paragraph of that..........of section 324a of the said code.2. the salient facts are these. one ramchandra and others had obtained decrees, nos. 178 and 179, in the court of the second class subordinate judge at chalisgaon against two persons. those decree-holders having applied for execution, by attachment and sale of certain lands, that court transferred the decrees fact the collector under section 320 of the code. the collector in execution realised rs. 2,785 and held that, amount for payment to the decree-holder was in the actual custody of the mamlatdar on behalf of the collector.3. in the meantime the present respondent, who, had obtained a decree for money against the above mentioned decree-holder ramchandra govind and others, in the court of the subordinate judge, first class, at dhulia, applied to.....
Judgment:

Chandavarkar, J.

1. In applying Section 285 of the old Code of Civil Procedure (Act XIV of 1882) to the facts of the case, the learned District Judge, from whose decree, reversing that of the Assistant Judge, these second appeals have been preferred, has overlooked the provisions of Section 324A of the said Code.

2. The salient facts are these. One Ramchandra and others had obtained decrees, Nos. 178 and 179, in the Court of the Second Class Subordinate Judge at Chalisgaon against two persons. Those decree-holders having applied for execution, by attachment and sale of certain lands, that Court transferred the decrees fact the Collector under Section 320 of the Code. The Collector in execution realised Rs. 2,785 and held that, amount for payment to the decree-holder was in the actual custody of the Mamlatdar on behalf of the Collector.

3. In the meantime the present respondent, who, had obtained a decree for money against the above mentioned decree-holder Ramchandra Govind and others, in the Court of the Subordinate Judge, First Class, at Dhulia, applied to that Court for, and obtained attachment of, the amount in the hands of the Mamlatdar by means of a prohibitory order under Section 272 of the Code, served on the latter on the 13th of March 1907.

4. The present appellant, who also held a decree against the same decree-holders, Ramchandra Govind and others, obtained in the Court of the Subordinate Judge, Second Class, at Chalisgaon, applied to that Court, on the 12th of April 1907, for and obtained an order of attachment of the amount in the hands of the Mamlatdar. And in obedience to this order, the Mamlatdar remitted the amount to that Court. The amount was paid by the Court to the appellant accordingly.

5. Neither Section 272 nor Section 285 has any application to these facts. Whether the amount be regarded as having been in the custody of the Court at Chalisgaon or in that of the Mamlatdar on behalf of the Collector is immaterial. In either case, the custody was held subject to certain conditions prescribed by the provisions of Section 324A of the Code. In virtue of that section, the Collector held the amount at the disposal of the Court' which had transferred to him the decree for execution. That was the Court at Chalisgaon. That Court again, was bound to dispose of the amount in the manner and for the purposes mentioned in the third paragraph of that section. It was open to the respondent to apply to the Court at Chalisgaon through the Court at Dhulia for rateable distribution under Section 295; and under Clause 2 of the third paragraph of Section 324A the former Court could have ordered such distribution in its discretion. According to the provisions of the section, the Collector owed a special duty to that Court, and that Court alone had jurisdiction to deal with all questions as to the disposal of the amount. The prohibitory order of the Dhulia Court could not bind the Collector in the presence of the provisions under which alone he was authorised by the Statute to act and was acting and therefore that order was ultra vires. The Respondent's title resting solely on that order, and the order failing, the decree must be reversed and that of the Assistant Judge restored with costs of this second appeal and the appeal in the District Court on the respondent.


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