1. The point arising in this application is new and there is no direct authority on it.
2. There was an accont suit No. 1516 of 1921 in the First Class Court, Ahmedabad, in which a decree for Rs. 11,005-2-2 was passed against the petitioner and one Manilal since dead.
3. The judgment-debtor partner appealed to this Court in Appeal No. 114 of 1929, and applied for a stay of execution. A rule was issued on the application for stay and the final order was that the appellants should have a stay on their depositing the decretal sum in this Court. This was accordingly done. The respondent was allowed to withdraw the sum on furnishing security, but he did not do so.
4. On this the appellants made a fresh application No. 861 of 1929, praying that the amount deposited should be invested in Government promissory notes to save interest pending the appeal. This was ordered to be done on October-9, 1929, and securities of the face value of Rs. 18,400 were bought by the Registrar.
5. On the main appeal coming on for hearing, Rs. 280 of the sum decreed were disallowed and the decree was otherwise confirmed. Petitioners pray that the securities and the cash lying with the Registrar be sent to the trial Court, there to be returned to the appellants on their paying the amount now due on the original decree.
6. The application is opposed, the reason being that the investment of 1929 has now largely appreciated owing to a rise in the value of the securities, and the claim is made that what the decree-holder should get is securities which in 1929 represented the sum invested and not what that sum now represents in securities, since, it is argued, had the amount been paid over, the opponent might possibly have himself made the profit which has resulted.
7. The authority for opponents' contention is Chowthmull Maganmull v. The Calcutta Wheat and Seeds Association I.L.R.(1924)Cal. 1010. In that case the decretal debt had been paid into Court and the judgment-debtor was; soon after adjudicated an insolvent. The Official Assignee applied for the amount as representing the insolvent's estate, but it was held that the money belonged to the judgment-creditor and not to the estate, subject to success in the appeal Civil Application No, 4 of 1932 has also been referred to, an unpublished case of this Court. There the income of certain villages attached had been deposited in Court, and it was held to be the Property of the khots whose villages had been attached. But that case turned on different facts and the Calcutta one did not involve an increase in value.
8. We think that under the decree, all the decree-holder can claim the sum found due, with interest, which has been awarded at six Per cent. and that no more can be given him, while the profit must go to the Person who made the deposit.
9. We direct that the securities and cash in question should be sent to the executing Court, and that, on the amount due on the decree being worked out and its payment into Court and to the decree-holder, the securities should be made over to the applicants. There is no order as to costs.
10. This application is concerned with the disposal of the deposit made by the judgment-debtor in First Apeal No. 114 of 1929 as a condition of his being granted a stay of execution. A sum of money not less than the whole decretal amount was so deposited in 1929, and fete appeal was disposed of in June of this year. The decree of the lower Court was modified on appeal, with the result that the decretal sum was considerably reduced.
11. Pending the disposal of the appeal it had been ordered, on the application of the judgment-debtor, that the sum deposited should be invested in Government securities. The judgment-debtor now asks that those securities may be returned to him on his paying into Court the new decretal amount; or, in the alternative, that they may be sold and the balance of the price be returned to him after the decretal debt is satisfied.
12. The application is opposed on the contention that the securities belong to the decree-holder in proportion to his success in the appeal. The matter is of importance to the judgment-debtor, because the securities have appreciated considerably since they were first bought.
13. The decree-holder relies on Chowthmull Maganmull v. The Calcutta Wheat and Seeds Association I.L.R.(1924) Cal. 1010. That was a case where a judgment-debtor made a deposit pending the disposal of an appeal, but was declared insolvent before the appeal was decided. The Official Assignee claimed deposit for the benefit of the estate. But it was held that, as between the Official Assignee and the decree-holder, it was the decree-holder who was entitled to the deposit on the principle that 'money paid into Court belongs to the party who may be eventually found entitled to the sum.'
14. I do not think that this case is in point. The only effect of the decision is that what belonged to the decree-holder as against the Official Assignee was the money paid into Court; and the judgment is silent as to what the position would have been if that money had been subsequently converted into securities and the securities had appreciated beyond the amount of the decretal debt. It was stated, moreover, that the money was paid into Court to give security to the decree-holders that in the event of their succeeding in the appeal they should obtain the fruits of their success. In my opinion this is the correct way of regarding the deposit in the present case also; it was primarily a deposit of security rather than a deposit of the decretal debt, and the decree-holder cannot claim it as his own unless the judgment-debtor fails to satisfy the decree by the payment of the money due under the decree.
15. Again, we have here a case where the securities have appreciated in value,; indeed it is presumably this substantial appreciation which has led the decree-holder to oppose the present application. But if the contention of the decree-holder is correct, then he is the owner not of the money deposited but only of the securities (since clearly he cannot be the owner of either at his own choice). If, then, the securities had depreciated instead of appreciating-even if they had depreciated to vanishing point-the judgment-debtor would have been entitled to insist on the decree-holder accepting the securities instead of the money due under the decree. This reductio ad absurdum is, in my opinion, a complete answer to the present contention of the decree-holder.
16. The application must, therefore, be allowed.