1. This petition raises a question of considerable importance and difficulty, namely, whether a sum of money which is deposited in Court by a tenant under the provisions of Section 9 of the Delhi and Ajmer-Merwara Rent Control Act, 1947, is liable to attachment in the execution of a decree.
2. The facts of the case are simple and not in dispute. One Gulzarl Mal, a landlord of Delhi, brought a suit for the ejectment of his tenant Rup Chand on the ground that the latter had failed to pay the rent of the shop leased out to him. Taking advantage of Section 9 of the Delhi and Ajmer-Merwara Rent Control Act, which declares that no decree for ejectment shall be passed against a tenant who deposits in Court the arrears of rent together with costs on the first hearing of the suit, Rup Chand deposited in Court a sum of Rs. 1522/- on account of arrears of rent and the costs of the suit.
The landlord who held a previous decree against the tenant in a sum of Rs. 2,862/- promptly proceeded to attach this amount in the execution of that decree. The tenant objected to the attachment but his objections were overruled both By the executing Court and the learned District Judge on the ground that as the tenant who had deposited the money in Court had disposing power or control over the amount, the amount was not exempt from attachment. The tenant has come to this Court in second appeal and the question for this Court is whether the Courts below have come to a correct determination in point of law.
3. Section 60, Civil P. C. declares that all property belonging to the judgment-debtor or over which he has a disposing power which he may exercise for his own benefit is liable to attachment and sale in the execution of a decree. The question is whether a Judgment-debtor can be said to have disposing power over property in 'custodia legis', that is property or money deposited in Court under the provisions of law or in the custody of an officer of a Court under Civil process and which is held to be disposed of in some particular manner prescribed by law or according to orders of the Court.
4. A person can have no disposing power over, property which is in the custody of the Court, for it Is a general proposition of law that in the absence of a specific provision to the contrary, the property which is in 'custodia legis' cannot be attached in the execution of a decree unless the specific purpose for which property is held has been fulfilled. Thus money paid into Court in satisfaction of a judgment or deposited in Court under statute is not attachable. Protection from attachment does not extend to property where the custody of the officer is not 'custodia legis', or where the levy or custody is invalid or wrongful, or where legal custody is discharged or abandoned, or where for any reason whatsoever the custody is changed from 'custodia legis' into a personal obligation to the owner. If the property in 'custodia legis' exceeds in value the amount for which it is being held, the excess alone is liable to attachment.
5. In view of the importance of the matter, I consider it desirable to mention certain cases which illustrate the principles mentioned above. In -- 'Ex parte Banner; In re Keyworth', (1874) 9 Ch A 379 (A), the plaintiff brought an action upon an overdue bill of exchange for 1200 against the acceptors. The defendants obtained leave to appear & defend the action upon paying into Court 880 to abide the event. Shortly thereafter the defendants filed a liquidation petition. The Liquidator claimed the 880 for distribution among the creditors generally but Bacon C. J. disallowed the claim observing:
'According to all the cases cited, the 880 paid into Court ceased, upon its being paid into Court, to be the property of the debtors; it was no longer part of their estate. If the action had gone on to judgment, and the Judgment had been for the plaintiff for 880, the matter would have been quite clear and plain; the money would have belonged to the plaintiff.'
This decision was affirmed in appeal and as the sum in question was paid into Court to abide the event of the action, it belonged to the party which was found eventually to be entitled thereto.
6. In -- 'Maple & Co. v. Earl of Shrewsbury', (1887) 19 QBD 463 (B), it was held that where money is paid into Court with a defence denying liability, and the plaintiff does not accept it in satisfaction, an order for payment of such money out of Court cannot be made until after the trial or other determination of the action.
7. The Courts in India have also taken a similar view in at least three pre-emption cases. In -- 'Abdus Salam v. Wilayat Ali Khan', 19 All 256 (C), the holder of a decree for pre-emption paid the decreed pre-emptive price into Court. A creditor of the decree-holder applied for attachment of the money so paid, and ultimately was allowed by the Court to withdraw a portion of it. After the decree for pre-emption had been confirmed in appeal, the pre-emptor applied for possession of the pre-empted property. A Division Beach of the Allahabad High Court held that the decree-holder was entitled to obtain possession, and that it was not competent to the Court to pay out to any one but the person entitled to it under the decree for pre-emption any portion of the pre-emptive price, so long as the decree for pre-emption was not modified or reversed in appeal. In making the order of the Court the learned Judge observed as follows:
'Money paid into Court in a suit cannot be taken out of Court by a creditor of the man who pays it in so long as the suit is pending, or unless the result is that the person who paid it in is held entitled to withdraw the money or some part of it, and then the creditor of the person who paid it in can only have execution against so much of that money as his judgment-debtor would be entitled to take out of Court. Money paid into Court by a plaintiff in pre-emption to be paid over in a certain event to the defendant in the suit is in custody of the Court until the result of the litigation is known.'
8. The second case was that of -- 'Sant Singh v. Ghasita', 21 Pun Re 1902 (D). In this case, the holder of a decree for pre-emption duly deposited the purchase-money into Court as directed and obtained possession of land. Subsequently the money so paid in having been attached by a creditor of the decree-holder, who took it out of Court in execution of his own decree, the vendees applied for a return to them of the land as they had received no purchase-money, and the first Court ordered the pre-emptor to deposit a further sum for payment to the vendees. The Chief Court held that the money deposited in a Court to be paid to a vendee under a pre-emption decree cannot be withdrawn by an attachment under a decree of a third party and that the Court is not competent to pay it out to any one but the person entitled to it under the decree for preemption.
9. In the third pre-emption case -- 'Abdulla v. Amir Ud-Din', 76 Pun Be 1902 (E), the holders of a decree for pre-emption duly deposited the purchase-money amounting to Rs. 1,475/- in Court as directed. Subsequently a reversioner of the vendor brought a suit to have it declared that the sale was without necessity, and should not be allowed to affect his rights except in respect of Rs. 300/-, and obtained a decree. The pre-emptors then asked the Munsif for the return of their purchase-money as they no longer wished to go on with the purchase, as their decree of preemption had been superseded by the declaratory decree. The Munsif without informing the vendee ordered the refund of the money. Anderson J., who delivered the judgment of the Chief Court, observed as follows:
'If the pre-emptor thus steps into the vendee's shoes, it is pre-eminently just that the vendee, not the pre-emptor, should have the control of the purchase money which forms the consideration for his resigning to the pre-emptor his right and title to the property. It would be most anomalous to allow the pre-emptor, after putting his suit through the Court, and obtaining a decree, which could only lapse on failure to pay in the purchase-money, to change his mind suddenly, and take back his money as might suit his convenience, arid the fact that he had made a bad bargain and would have to pay off reversioners could make no difference to his legal position.'
10. It was presumably in view of these decisions and the general principles of law that the Legislature proceeded to declare in Section 11 of the Punjab Pre-emption Act, 1913, that no sum deposited in or paid into Court by a pre-emptor shall, while it is in the custody of the Court, be liable to attachment in the execution of a decree or order.
11. Mr. Monga, who appears for the landlord, contends that as the judgment-debtor in the present case deposited a sum of Rs. 1,522/- in Court only with the object of being able to retain possession of the shop and was at liberty to withdraw it at any time, he must be deemed to have full disposing power over the said amount, which he may exercise for his benefit. In support of this contention he has invited my attention to -- 'Province of West Bengal v. Bholanath Sen', AIR 1950 Cal 174 (P).
In this case, it was held that where the appellant to the Privy Council deposits an amount in Court as security for the costs of the respondents, the appellant still retains some disposing power over the amount deposited, which he may exercise for his benefit. The proposition is probably correct so far as it goes but the learned Judges who delivered this judgment were not prepared to hold that it is open to a creditor to attach the money which has been deposited in Court by way of security for the costs of the respondents. They observed that if the appeal fails and the costs decreed do not exhaust the deposit, the surplus is available to the appellant.
If, on the other hand, the appeal succeeds, the whole of the deposit remains at the disposal of the depositor and may be attached in the execution of a decree. A similar view was taken in -- 'Jagdish Narain Singh v. Mt. Ramsakal Kuer', AIB 1929 Pat 97 (G). In this case, it was held that insolvent's money deposited by him in Court as security for the costs of an appeal to His Majesty in Council, can be attached, but the order of attachment must be made subject to the result of the appeal. These cases fully support the principle propounded in an earlier paragraph of this Judgment that property in 'custodla legis' cannot be attached in the execution of a decree except after the fulfilment of the specific purpose for which property is held.
12. For these reasons, I would accept the petition, set aside the orders of the Courts below anddirect that as the money which is alleged to havebeen withdrawn by the landlord was in 'custodialegis' and could not be withdrawn until the specific purpose for which it was deposited had beenfulfilled, it should be restored to the Court. The'appellant will be entitled to costs here and below.