1. The plaintiff and the defendant submitted their original differences to arbitration in the year 1887. Upon the award a consent-decree was taken creating what appears to have been a usufructuary mortgage in the plaintiff's favour. The scheme of that award was clearly to pay off the sum of Rs. 41,000, said to be due by the defendant to the plaintiff, in fourteen years, by instalments of Rs. 3,100 a year, and in the fourteenth year an instalment covering the balance. The plaintiff was to be put in possession of the defendant's lands and also to receive the defendant's share of the revenues of three Inam villages. It is in respect of this latter part of the decree that the point arose with which alone we are now concerned.
2. In 1894 the plaintiff put in a Darkhast for the execution of this decree, and it appears that in the proceedings taken upon that Darkhast the plaintiff and defendant entered into a further agreement, the main purpose of which was to constitute the defendant the plaintiff's tenant of the lands. There were many other minor details and provisions in case of default on the defendant's part, and loss occasioned thereby to the plaintiff. But those are immaterial. This agreement appears to reaffirm and be intended to carry out the scheme of the consent-decree of 1887. Again, the share of the revenues of the villages belonging to the defendant is to be paid through the Court to the plaintiff, and this agreement would appear to have been recorded as a modification or amplification of the original consent-decree, for the enforcement of which the Court would undertake responsibility. We may well doubt whether the Court was well-advised in accepting any modification of this kind upon those or any other terms. What appears to us to have been a more proper course would have been to record this, if at all, as a new agreement, and to record it, not as a decree of the Court, but as such agreement, in substitution of the first consent-decree. Even as to that, I mean the first consent-decree, we may again doubt whether the Court was well-advised in taking upon itself virtually the execution of a mortgage contract between these parties in the form of a consent-decree, without any of the preliminaries of a mortgage suit having been gone through. But notwithstanding the doubts we feel upon both these points the fact remains that the Court appears to have accepted this Darkhast of 1894 at the close of the year 1895, and thereon to have issued a prohibitory order providing that the share of the revenues of the three Inam villages belonging to the defendant should be paid by the village officials to the Court's order to hold in satisfaction of the decree, and was to be paid by the Court to the plaintiff. Such an order at that time, assuming that the defendant's share of the revenues of these Inam villages was an estate, would certainly have been within the express terms of Civil Circular 87 of the Order Book of the year 1889; nor do we think that it would in any way conflict with the principle of the decision in Tulaji v. Balabhai I.L.R. (1896) 22 Bom. 39, for regarding the estate as that which produces the revenue, and as something attachable in itself, it would fulfil the requirements which we understand to underlie the principle of Farran Chief Justice's judgment, namely that, what is attached must be something in existence, and not merely in the future. It is perfectly clear that property attached yielding a revenue or producing interest or dividends is within the meaning and contemplation of all Garnishee orders under Order XXI, Rule 52, and that such interest or dividend becoming due, and therefore in the future, is Expressly provided for in that rule, and it would follow upon the same principle that if an estate yielding a revenue were properly attachable under the same rule, then revenue in future owould be for all the purposes of such attachment on the same footing as interest or dividend. The only doubt we feel in thus applying the rule to the principle of Tulaji v. Balabhai I.L.R. (1896) 22 Bom. 39 is whether Order XXI, Rule 52, was really intended to contemplate the attachment of immoveable property. We think it unnecessary to dwell further upon this point, because it is clear in the events that have happened that the order of 1895 making the defendant's share of the Inam revenues of these three villages payable into Court for the benefit of the plaintiff was never appealed against and continued in force up to the date of the present proceedings.
3. In the year 1904 it would appear that the Darkhast of 1894, upon which the order of 1895 was passed, came under criticism, probably on account of its apparent staleness. The learned Subordinate Judge, at that time Mr. Wagh, held that the order of 1895 was still in force, the Darkhast of 1894 was alive and must be continued. On that footing it would appear that the defendant's share of the revenues of these Inam villages has been paid into Court, and that the Court has paid it to the plaintiff under this Darkhast of 1894.
4. In 1912 the learned Subordinate Judge appears to have called upon the parties, and to have taken up the matter of this Darkhast again. The pleaders who represent the parties here cannot inform us whether the defendant really took any part in these proceedings. The plaintiff certainly did, and the learned Judge appears to have come to the conclusion that the Court was already functus officio for all purposes of execution as soon as it had put the plaintiff in possession of the lands under the agreement of 1895, and issued one Garnishee order of the same year. The learned Judge, therefore, came to the conclusion that the Darkhast of 1894 was no longer in existence, and must be struck out. We think that in taking that view the learned Judge was wrong. From what has been already stated it is clear that however doubtful the steps may have been through which the order of 1895 was reached, that was an order upon the Darkhast of 1894, and continued alive and effective up to 1912. We think that unless it could be shown that the plaintiff's debt was satisfied, for this appears to be the only condition imposed upon the continuity of the order in 1895, that order would still have to be in force. We certainly feel great sympathy with the learned Judge who evidently conceived himself to have been acting within the scope and principle of Section 151, but we think that his proper course here would have been to issue notice to the parties concerned, if he thought it essential in the interests of justice to do so, to show cause why the order of 1895 should not now be discharged on the ground of full and complete satisfaction of the plaintiff's debts. As matters stand, no such satisfaction appears to have been pleaded before the learned Judge, and ordinarily it would be for the defendant, whose money was thus being appropriated, to take the first step and raise the first objection, if he really believed that his debt to the plaintiff was satisfied.
5. With these observations we think that the order complained of must be reversed, and that the Darkhast of 1894 must still be considered to be alive and operative until it shall be brought to an end in the manner we have suggested, should the investigation thus set on foot prove that there is no need to continue further this Garnishee order. In the circumstances we think that each party should bear his own costs of this appeal.