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Maddula Kasiyya Vs. Jallipalli Pullayya and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAndhra Pradesh High Court
Decided On
Case NumberA.A.A.O. No. 59 of 1970
Judge
Reported inAIR1974AP220
ActsLimitation Act, 1908 - Schedule - Article 182; Code of Civil Procedure (CPC), 1908 - Sections 47 and 60; Succession Act, 1925 - Sections 214
AppellantMaddula Kasiyya
RespondentJallipalli Pullayya and ors.
Appellant AdvocateK. Mangachary, Adv.
Respondent AdvocateB. Ramalingeswara Rao and ;Y.V. Narayana, Advs.
Excerpt:
.....is liable to be refunded on failure of the purpose for which it was intended. it was held that the money deposited was charged with the lien on dues to the plaintiff, but the attachment effected was good, the rights of the attaching creditor and the official receiver were however subject to the said charge. ramchand, (1905) ilr 29 bom 405. that is one class of case ;but you get a totally different class of case where money is not deposited in court in order to secure something being done by the person who deposited it, such as abstaining from going away or removing his property from the jurisdiction of the court but where money is paid to the credit of the suit or ear-marked for the suit, the courts have always held that, when that is done, the money belongs to the plaintiff in the event..........the appellant in this second appeal. the facts giving rise to this appeal are the following :2. a money decree was passed against the appellant and another person in o.s. 12 of 1957 on the file of district munsifs court, eluru for rs. 1,716/- in favour of the first respondent and the predecessor in interest of the respondents 2 and 3. the decree-holders filed e.p. 292 of 1959 on 29-10-1959, for attachment of the movable properties. the movable were attached. in e.a. 442/70 by an order dated 18-4-1960 movables were directed to be sold without any reference to the upset price. but on 30-6-1960 e.p. 292 of 1959 was dismissed. later on the other decree-holder i.e., the predecessor in interest of respondents 2 and 3 died. thereupon respondents 1 to 3 filed e.p. 160 of 1963 on 24-6-1963 for.....
Judgment:

1. Judgment debtor is the appellant in this second appeal. The facts giving rise to this appeal are the following :

2. A money decree was passed against the appellant and another person in O.S. 12 of 1957 on the file of District Munsifs Court, Eluru for Rs. 1,716/- in favour of the first respondent and the predecessor in interest of the respondents 2 and 3. The decree-holders filed E.P. 292 of 1959 on 29-10-1959, for attachment of the movable properties. The movable were attached. In E.A. 442/70 by an order dated 18-4-1960 movables were directed to be sold without any reference to the upset price. But on 30-6-1960 E.P. 292 of 1959 was dismissed. Later on the other decree-holder i.e., the predecessor in interest of respondents 2 and 3 died. Thereupon respondents 1 to 3 filed E.P. 160 of 1963 on 24-6-1963 for sale of the attached movable properties. Notice to the judgment debtor was ordered but for non-payment of batta the said E.P. was dismissed on 12-8-1963.

3. Thereafter the decree-holders filed on 31-5-1966 E.A. 409 of 1966 seeking transfer of the decree to the District Munsif's Court, Chintalapudi for purposes of execution. On 6-7-1966 transfer was ordered and the decree was transmitted to the District Munsif's Court, Chintalapudi. In that Court the decree-holders filed E.P. 44 of 1968 on 20-12-1967. In that E.P. the movables were sold and a part satisfaction for Rs. 423/- was recorded and that E.P. was closed on 13-5-1969. Thereafter the decree holders filed E.P. 32 of 1969 in the District Munsif's Court, Chintalapudi for attachment of the amount lying in deposit in O.S. 15 of 1969 on the file of Sub-Court, Eluru as belonging to the appellant-judgment debtor therein.

4. The appellant herein resisted the said E.P. on the following grounds : (1) The E.P. itself has become barred by limitation (2) without production of succession certificate the E.P. was not maintainable and (3) the amount lying to the credit of O.S. 15 of 1969 on the file of the Sub-Court , Eluru is not liable to be attached.

5. The learned District Munsif, Chintalapudi overruled the objection No. 3 which was pressed before him. He held that the said amount was deposited in O.S. 15 of 1969 not by virtue of any direction given by the Court to the appellant herein to make such a deposit, nor was it a condition precedent for the institution or prosecution of the suit to have such a deposit. Moreover the said suit was dismissed and an appeal was pending against it. The judgment-debtor appellant herein cannot say that his funds are locked up in some other suit and thereby evade payment of the decree obtained by the respondent herein. He therefore held that the said amount can be attached. The attachment was therefore made absolute by an order dated 4th February , 1970.

6. The judgment debtor thereupon preferred an appeal A.S. 17 of 1970 before the District Judge, West Godavary at Eluru. The learned appellate Judge also has negatived the three contentions raised by the appellant herein. The lower appellate Court held that the present E.P. is not barred by limitation as the application for transfer of the decree to the District Munsif's Court, Chintalapudi would operate as a step-in-aid of the execution, that the present E.P. can be filed even without the production of succession certificate and that the amount that was deposited by the appellant herein in O.S. 15/69 was not impressed with the character of any trust in favour of his proposed vendor and it was therefore attachable. Having negatived all the three contentions the learned Judge has dismissed the appeal by his judgment dated 26th August, 1970.

7. In this second appeal preferred by the judgment-debtor Sri Mangachary, learned counsel appearing for the appellant has relied upon the very same three contentions before me. I will deal with them seraitim. Regarding the first contention that the present E.P. is barred by limitation he has conceded that if the transfer application E.A. 409/66 is treated as a step-in-aid of execution , there is no bar of limitation.

8. It has been authoritatively laid down by the Full Bench of Madras High Court in Avi Goundan v. Solai Goundan, AIR 1945 Mad 139 (FB) that in order to operate a step-in-aid of execution it is not necessary that such an application should be made in a pending application for execution. Therefore on the basis of this principle even though there was no pending execution application, the application for transfer E.A. 408 of 1966 can be treated as step-in-aid provided it does something to further promote the purpose of execution. In Manmatha Pal v. Sarada Prosad. AIR 1939 Cal 651 it was held by a Bench of that Court that an application to the Court which passed the decree for transfer of decree is an application relating to execution of a decree, coming within Section 47 of the Civil P. C. In Sundara Rao v. Appiah Naidu, AIR 1954 Mys 1 (FB) a Full Bench of Mysore High Court held that a transfer of the decree is a necessary preliminary to the execution of the same in another Court and as such it is a step-in-aid of execution. If such an application it should be held to be within time. The decision in AIR 1939 Cal 651 at p. 655 was followed after quoting the following passage:

'An application for transfer of a decree is a step-in-aid of execution. By that application the decree-holder asks the Court which passed the decree to assist him for the purpose of carrying further proceedings to realise his decree.' In S. N. Prassanna Kumar v. Zabirabee, (1969) 2 APLJ 342. Gopal Rao Ekbote, J. (as his Lordship then was) and Kuppuswami, J., observed that Section 39 of the Civil P. C. does not prescribe any particular form for getting the decree transferred and an application for transfer may constitute a step-in-aid of execution within the meaning of Article 182 of the Limitation Act because the purpose of the application is to enable the decree-holder to have the decree executed, though the application does not by itself ask for execution. I may also in this connection rely upon the decision of our High Court in R. Ramachandradu v. Gulab Chand Firm, (1957) 2 Andh WR 169 = (AIR 1958 Andh Pra 709) rendered by Subbarao and Jaganmohan Reddy, JJ. (as their Lordships then were) wherein it was held that an order of retransfer of execution petition shall also operate as a step-in-aid of the execution.

9. In view of the above authorities it should be held that an application for transfer of a decree to another Court, operates as step-in-aid of execution within the meaning off Article 182 of the Limitation Act (Old). Under the New Limitation Act also an enlarged period of 12 years has been given under Art. 136. The execution was not barred before the new Act came into force on 1-1-1964. It has therefore to be held that he plea of the appellant that the E. P. was barred by limitation has no substance.

10. Regarding the second objection that the E. P. was not maintainable without a succession certificate, the said objection is not tenable as the decree in this case was passed in favour of two persons of whom one died. The present execution petition is filed by one of surviving decree-holders and the legal representatives of the other decree-holder. Section 214 of the Succession Act is not applicable to such joint decree-holders. The lower appellate Court was therefore justified in rejecting this objection as well.

11. Taking up the last contention of the appellant that the decree-holders cannot attach the amount of Rs. 22,000/- deposited by him in the suit O. S. 15 of 1969 on the file of Sub-Court, Eluru, the appellant has relied upon a decision of Madras High Court in Ramakrishna Chetti v. Thangavelu Chetti, (1956) 2 Mad LJ 101 = (AIR 1956 Mad 574) as in case in which , in a suit by B. for specific performance of an agreement to reconvey certain properties, he was directed to deposit into Court a specified sum, B then borrowed this sum from A for the specific purpose of depositing into Court and with an undertaking that he would execute a possessory mortgage in favour of A in respect of those properties and that in case the decree for specific performance is reversed on appeal he would get a refund of the money from Court and pay it to A. On the reversal on appeal of the decree for specific performance A sought to recover the amount in Court which other creditors of B had attached. It was held in the circumstances of that case that the fund in Court is impressed with the character of a trust and A has got an equitable right in respect of that amount as the same was paid for a particular purpose and is liable to be refunded on failure of the purpose for which it was intended. B is a trustee for the amount and he was no beneficial interest in it. The creditors of B cannot therefore attach the money in Court, which was lying in Court.

12. Coming to the facts of our case, it is admitted that the money which the appellant has deposited in O. S. 15 of 1969 was not a deposit made in pursuance of any direction of the Court or in obedience to a decree or order of the Court. The appellant herein sued for specific performance of a contract for sale and according to him he had to pay that amount as the balance of consideration. He has therefore deposited that amount into Court. The defendant in that suit, it appears, has been denying the contract itself and has not accepted that amount as one made in pursuance of the contract binding upon him. He has also claimed that amount as really belonging to him. In such a case the question that arises is whether it is the amount which is liable to attachment under Section 60 of the Civil P. C.? The provision of Section 60, in so far as they are relevant may be quoted thus :--

'The following property is liable to attachment and sale in execution of a decree, namely, lands, houses, or other buildings, goods, money, bank notes, cheques, bills of exchange, hundis, promissory notes, Government securities, bonds, or bonds, or other securities for money, debts, shares in a corporation and, save as hereinafter mentioned, all other salable property, movable or immovable, belonging to the judgment debtor or over which, or the profits of which, he has a disposing power which he may exercise for his own benefit whether the same be held in the name of the judgment-debtor or by another person in the trust for him on his behalf.'

Therefore, we have got to see whether the amount lying in Court to the credit of the suit for specific performance is an amount, over which the judgment debtor appellant herein has disposing power which he may exercise for his own benefit. If he has got such disposing power, then it is a property which is liable for attachment. If he has not got such power then it cannot be attached. So the crucial test is whether the appellant therein has got disposing power over the amount now lying in Court.

13. As stated already the amount has been voluntarily deposited by the judgment debtor to the credit of that suit. It has been claimed as the money due to the defendant in that suit by the defendant. On the other hand the defendant disclaimed that money since he was disputing the contract itself. If the said suit has been dismissed the amount reverts back to the judgment debtor. Even during the pendency of the suit, it was certainly open to the judgment debtor at any time to have withdrawn his suit and if so he gets back his money. The mere fact that it was ear-marked for the purpose of the suit, filed for specific performance, would not take away the disposing power of the judgment debtor (appellant herein) of that amount.

14. The next question that arises is whether the other creditors of the appellant therein are entitled to attach amount and the amount can be paid over to them in pursuance of such an attachment even before the disposal of the suit to the credit of which the said amount has been deposited? Their rights to have the amount attached cannot be disputed, because on the above reasoning, the judgment debtor has got a disposing power, which he may exercise for his own benefit over his money. But the question is whether the creditors can have the moneys also paid over to them even before the disposal of the suit, to the credit of which the said amount has been deposited. It has been held in some cases that the amount being ear-marked for a particular purpose in a particular suit, even though it cannot be said that that amount belongs to the defendant in that suit the other creditors of the depositor, even though they are entitled to attach the said money, have to abide the result of that litigation before they are paid over that amount under attachment. I will now deal with the cases which have taken the aforesaid view.

15. In Province of West Bengal v. Bholanath, : AIR1950Cal174 the appellant deposited certain amount into Court as security for purpose of appeal to the Privy Council towards costs of the respondents. The creditors of the depositor sought to attach the said amount. In that connection their Lordships observed as follows :--

'The effect of the security deposit as stated already, is not to take away entirely the disposing power of the depositor. In spite of the fact that the deposit is earmarked for a specific purpose, the depositor still retains a disposing power which he may exercise for his benefit. The extent of the power is dependent or certain contingencies. The fact that the G. D. notes deposited are endoresed in the name of an officer of the Court did not affect the question. The word property is used in a wide sense and does not mean only proprietorship but includes any right or power in respect of the same. The effect of the attachment is merely to prevent private property to claims enforceable under the attachment. In my opinion the security deposit is liable to attachment in execution of a decree.'

Their Lordships followed, for this view, the decisions of Allahabad and Patna High Courts in Shantanand v. Basudevanand, AIR 1930 All 225 at p. 244 (FB) and Jagdish Narain v. Mt. Ramsakalkoer, AIR 1929 Pat 97. The latter case was also a case of a deposit towards costs for the purpose of appeal to the Privy Council. Their Lordships there referred to a Bench decision of Madras High Court in Ramiah = (AIR 1919 Mad 607). In that case a debtor in order to prevent his arrest by the creditor, deposited the claim of the plaintiff. The said money was attached by another person who had obtained a decree against the depositor. The depositor was adjudicated as insolvent. It was held that the money deposited was charged with the lien on dues to the plaintiff, but the attachment effected was good, the rights of the attaching creditor and the official receiver were however subject to the said charge.

16. In ILR 41 Mad 1053 = (AIR 1919 Mad 607) Courts Trotter, J. speaking for the Bench observed as follows at page 1055 :--

'It is clear that attachment before judgment of property under Order 39, Rule 5, Civil P. C. does not pass any title to the person at whose instance it was attached but merely its effect is to prevent alienation on the part of the person whose property is attached. It reason whose property is attached. It restricts the hands of the owner of the property but does not make him case to be owner nor does it confer any specific lien on the person who seeks the attachment. This was laid down in numerous cases both in England and in this country, and Lord Hobhouse observed in Motilal v. Karrabuldin, (1898) ILR 25 Cal 179 (PC) that even attachment in furtherance of execution gives no title.'

X X X X

Further down their Lordships observed :

'Similar principles have been applied to money deposited into Court under a Garnishee Order in Jitmand v. Ramchand, (1905) ILR 29 Bom 405. That is one class of case ; but you get a totally different class of case where money is not deposited in Court in order to secure something being done by the person who deposited it, such as abstaining from going away or removing his property from the jurisdiction of the Court but where money is paid to the credit of the suit or ear-marked for the suit, the Courts have always held that, when that is done, the money belongs to the plaintiff in the event of his success and that it cannot pass to the general creditors of the person who pays it in or to any person who claims under him. That distinction has been very clearly laid down by the English Courts in the case of In Re Pollard, (1903) 2 KB 41. At the end of the judgment their Lordships observed as follows :

'We think that the first alternative described by the rule is undoubtedly the one pursued in this case, that is, the money was paid into Court to the general credit of the action, as such, charged with lien on the plaintiff obtaining a decree in his favour and we think that neither the assignee of the bankrupt's estate nor the general body of creditors nor any specific creditor has a claim which can prevail over the title of the plaintiff.' This decision holds when money is deposited generally to the credit of a suit, it would be charged with a lien in favour of the person, in whose favour the money was intended to be paid, subject to the result of that litigation.

17. In Joseph's Tile Works v. Kottayam Bank, AIR 1953 Trav Co 21 the facts were the judgment debtor filed a suit against a third party, lessor, to accept the rent deposited by him into Court and for a declaration that he had not forfeited the right to hold the property on lease. The lessor in that suit contested it, but also filed another suit to recover possession of the leasehold property from the judgment debtor. When the amount so deposited by the judgment debtor was sought to be attached by an other decree-holder of the judgment debotor objected to it on the ground that the amount was not attachable. In that connection the Bench made the following observations at page 23 :--

'It is true that there is some difference between payments made in Courts as per decrees or orders of Court and voluntary payments made by a party for getting some relief from the Court. In the case of a decree-debt the amount becomes the property of the decree-holder, when it is paid into Court. In the case of payments made as per order of Court the amount is earmarked for the purpose for which the payment is ordered. The same may not be the case when a person makes a voluntary payment in Court for the purpose of getting a particular relief. But even in such a case the money deposited cannot be said to be at the absolute disposal of the person who makes the deposit. In the case of money deposited in Court in a suit the Court has the custody the control of it for purpose of that suit; (Striling, J. in Stephens v. Green' 1895-2 Ch 148). In other words as soon as money is deposited in Court for the purpose of a suit the Court becomes seized of it and until the Court decides one way or the other as to who is entitled to the money it cannot be said that the money belongs either to the plaintiff or to the defendant. After the deposit is made the person who makes the deposit ceases to have absolute control over the money. It is not like money deposited in a Bank. The Court is not bound to return the money as and when the depositor wants it. His right to get back the money will depend upon the decision of the Court.'

18. Their Lordships also referred to a passage in Halsbury's Laws in England. 1910 Edn, Vol. XIV at page 113. At the end of the Judgment their Lordships again reiterated the same principle viz.,

'It cannot also be said that he has no disposing power whatever over the money deposited and that it is, therefore, not property attachable under Section 60, Civil P. C. but his disposing power is a limited one. He can transfer the right to the money only subject to the result of the suit. The transferee will get the money only if the Court ultimately finds that the depositor is entitled to get back the amount either in part or in whole. It is only this limited right of the depositor that can be attached by a creditor of his. The creditor can attach whatever right the depositor may have in the money according to the decision in the suit. Such an attachment can be allowed in this case also. But the decree-holder will not be allowed to draw the money from Court until the final decision of the suit in which the deposit is made. The attachment will be subject to the result of the suit.'

19. On the basis of the principle laid down in the above cases, it has to be held that the money of the appellant herein lying to the credit of O. S. 15 of 1969 on the file of Sub-Court, Eluru, is liable for attachment at the instance of the decree-holders respondents herein. But the attachment would be subject to the result of the suit O. S. 15 of 1969.

20. I am told by Sri Mangachary that that suit was dismissed and an appeal against it was also dismissed by the High Court. But this clients have preferred a leave petition before the Supreme Court. If the leave is ultimately granted against that judgment, the decree in the appeal cannot be said to have become final. If the leave is not granted the decree dismissing the suit would become final. Therefore the attachment of the money of the appellant by the decree-holders would await the final disposing of the leave petition or the proposed appeal before the Supreme Court.

21. Sri Y. N. Narayana, learned counsel for the respondent decree-holders relied upon a decision of a Bench of this Court consisting of Chandra Reddy , C. J. and Kumarayya, J, in Jai Prakash Talkies v. Lakshmi Talkies , (1964) 2 Andh WR 298. In that case the judgment-debtor, whose money was sought to be attached in Sub-Court. Vijayawada by the decree-holder in Sub-Court., Kavali. The amount of the judgment debtor was to the credit of O. S. 203 of 1950 on the file of Sub-Court, Vijayawada, in part satisfaction of the compromise decree passed against him in that suit. As the said amount did not fully satisfy the decree the decree-holder in that suit refused to take that amount contending that the deposit of a sum much smaller than that stipulated was in breach of the terms of the compromise. When the suit amount was sought to be attached by another creditor of the same judgment debtor, the judgment debtor, the judgment debtor raised an objection that money in Court deposit could not be attached. That objection was overruled by the executing Court was overruled by the executing Court on the ground that under Order 21, Rule 58, Civil P. C., it is not open to the judgment debtor to resist the attachment on the plea that he was not the owner thereof. In appeal to the High Court Justice Muni Kanniah, J. while dismissing the appeal directed that the amount should remain in Court deposit till another C. M. A. 259 of 1962 was finally decided on the plea that attachment would be operative in case the appellants do not succeed in that appeal. The said direction given by the learned Judge was challenged in the L. P. A. It was held by their Lordships that the said direction was contrary to the principle of law. It was made clear in the judgment that the person for whose benefit the amount is alleged to have been deposit by the judgment debtor not only has not put forward any claim for it, but also he has disclaimed it alleging that the deposit compromise. In such a case it was not open to the judgment debtor to contend that the money belongs to a person, who admittedly asserts that he has nothing to do with it. It was also held that under Order 21, Rule 58, Civil P. C. no investigation can be made in respect of a case wherein the judgment debtor says that he is not the owner of the money. In those circumstances it was held that the objection of the judgment debtor was not tenable and the direction given by the learned single Judge was also deleted.

22. The principle of the above decision cannot apply to this case because there is no claim under Order 21, Rule 58, Civil P. C. in this case. Secondly this is not a case wherein the defendant in the other suit has disclaimed this amount. It is no doubt true that the suit for specific performance has been dismissed and the appeal also has been dismissed. But the matter is still pending in appeal before the Supreme Court and if the appeal were to be allowed, the amount certainly would go to the defendant in that litigation.

23. On the principle stated by me as above, the amount is no doubt liable for attachment, but the attachment should abide the result of the litigation wherein the amount has been deposited . If the amount is paid over to the decree-holder herein then there will not he sufficient amount lying in Court to the Credit of the specific performance suit and that may be one of the grounds whereby the specific performance relief may be negatived. The interests of the decree-holders are amply protected by ordering attachment over this amount and they should abide the result and await till the disposal of the other litigation for payment out.

24. Subject to the above observation I hold that the amount lying to the credit of O. S. 15 of 1969 Sub-Court, Eluru, is also liable for attachment at the instance of the respondents decree-holders herein. In that view I reject the third contention also.

25. In the result, all the three contentions raised by the appellant have been rejected. This appeal fails and is dismissed with costs.

26. Appeal dismissed.


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