1. This is an execution first appeal by the Secretary of State for India and has arisen in the following circumstances:
Suit No. 21 of 1929 was instituted by one Abid Husain against one Abdus Sattar in Court of the Subordinate Judge of Muttra. Abid Huaain sued as a pauper. His suit succeeded and he got a decree against Abdua Sattar for payment of little over Rs. 10,000. The decree that was passed stated that the amount of court-fee, namely, Rs. 490 and the amount of Government Pleader's fees amounting to Rs. 49 should be paid by the defendant in the suit. The decree was sold by Abid Husain to the respondents before us, Shiv Dutt and Baijnath. Shiv Dutt and Baijnatb obtained an order of transfer of the decree to the Lucknow Court, and there a house of the judgment debtor was brought to sale. It was sold for a thousand rupees and was purchased, by the decree-holders, Shiv Dutt and Baijnath.
2. Shiv Dutt and Baijnath instead of paying the sale consideration in cash they certified receipt of this amount which was set off against the decree. After the sale it appears, the Secretary of State was appraised of the fact that execution of the decree was going on at Lucknow, and he made an application to the Court for payment to him. The sale having taken place the learned Subordinate Judge thought that he could not but confirm it. He how ever directed that no sale certificate should issue till the money was paid, and he also directed the decree-holders to pay the money in 15 days. Shiv Dutt and Baijnath not having paid the money claimed by the Secretary of State, the latter took out execution of the decree against them in the Court of the Subordinate Judge at Muttra.
3. Shiv Dutt and Baijnath raised an objection to the execution, and their objection having succeeded in the Court below, this appeal has been filed on behalf of the Secretary of State. The argument of the learned Government Advocate is this : Under Order 33, Rule 10 the Secretary of State has a first charge on the subject matter of the suit. The decree passed in favour of Abid Husain being a decree for money any money realised by Abid Husain or his successor-in-title would be the subject matter of the suit. The decree-holders, Shiv Dutt and Baijnath, having purchased the property of the judgment-debtor for a thousand rupees, they in substance, paid the sum of thousand rupees into Court and also took away the same.
4. Although actually the money was not paid into Court and although money was not actually taken away from the Court, the proceeding of granting a receipt for the sum of Rs. 1,000 and setting it off against the decretal amount was tantamount, according to the learned Government Advocate, to the receipt of Rs. 1,000 by Shiv Dutt and Baijnath. The contention on behalf of the appellant is that Shiv Dutt and Baijnath having realised the sum of Rs. 1,000 from the judgment-debtor, they could not pocket the entire amount without having discharged the amount due to the Secretary of State. In our opinion, subject to a little correction, this argument is unans werable. On behalf of the decree-holders Mr. Panna Lal has contended that the subject matter of the decree was the property of the judgment-debtor that was sold and, if the Secretary of State has a first charge on that property, his clients will have no objection in having that pro-party put up for sale again.
5. In our opinion, this argument on behalf of decree-holders is not sound. The charge on the subject matter has been created by law and when the decree-holders made the purchase, they knew or bought to have known that the sum of Rs. 1,000, for which they received credit, was not in its entirety their property. It appears that the charge created by Rule 10, Clause 33 is a charge for the court-fee only. The Government Pleader's fee amounting in this case to Rs. 49 is not a charge on the subject matter of the property. That sum can be realised only from Abdus Sattar, the judgment-debtor. In the re-Kiult, we allow the appeal in part, set aside the decree of the Court below and direct that execution do issue for the sum of Rs. 490 and the costs of the execution against the respondents, Shiv Dutt and Baijnath. The appellant will receive his costs in this Court and the Court below.