Skip to content


Koruthu Oommen Vs. G. Rama Warrier and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberCivil Revn. Petn. No. 237 of 1971
Judge
Reported inAIR1973Ker26
ActsCode of Civil Procedure (CPC) , 1908 - Order 21, Rule 58
AppellantKoruthu Oommen
RespondentG. Rama Warrier and anr.
Appellant Advocate A.S. Narayanan Asan, Adv.
Respondent Advocate S. Neelakanta Iyer and; K.S. Rajamony, Advs.
DispositionRevision dismissed
Cases ReferredPeter Morris v. Radhakrishna Films
Excerpt:
.....as the karanavan of the variyam, that the deposit was made out of funds belonging to the variyam, that he had no right whatsoever personally over the amount in deposit and that, as such, the attachment on the basis that the amount belonged to the judgment-debtor personally is bad and is, therefore, liable to be cancelled. the learned munsiff went into the question and having been satisfied that the claim put forward by the claimant was true, allowed the petition. it is his further contention that the proviso could be attracted only in cases where the attachment as such is not disputed, and the controversy is confined as to the person or persons like decree-holders, assignees etc......belonged to the judgment-debtor personally is bad and is, therefore, liable to be cancelled. the learned munsiff went into the question and having been satisfied that the claim put forward by the claimant was true, allowed the petition. it may incidentally be noted that while e. a. 1404/66 was pending enquiry, the suit o. s. 18 of 1963 was disposed of on 4-2-1967. however, the respondent herein was permitted to continue the proceedings in e. a. 1404/66 in her capacity as a member of the family, though the petitioners in e. a. had ceased to be the receivers. this revision is directed against the order allowing the claim petition.4. various grounds have been taken in the revision. it is contended inter alia that the learned munsiff had no jurisdiction to entertain the claim petition in.....
Judgment:
ORDER

K. Bhaskaran, J.

1. Decree-holder in O. S. No.160 of 1962 on the file of the Munsiff's Court, Mavelikkara, is the revision petitioner. The respondent is the petitioner in E. A. No. 1404 of 1966 on the file of the said Munsiff's Court, wherein the revision petitioner herein is the counter-petitioner.

2. The revision petitioner obtained a decree personally against one Sankara Warrier in the said suit, O. S. 160/62, and in execution thereof attached a sum of Rs. 1200/- deposited by the said Warrier in O. S. No. 105/56 on the file of the Sub-Court, Mavelikkara. The said Sankara Warrier, judgment-debtor in the said suit O. S. 160/62, was the 28th defendant in the suit O. S. No. 105/56. The deposit was made by him for obtaining stay of the decree in O. S. 105/56 as directed by this Court in the order on a stay petition filed in A. S.No. 178 of 1962. Ext. X-1 dated 31-1-1967 is the copy of revised judgment in O. S. 105/56 after remand by this Court, and Ext. X-2 dated 25-5-1962 is the copy of order on the stay petition in A. S. No. 178/62 of this Court.

3. O. S. 18 of 1963 on the file of the Subordinate Judge's Court, Mavelikkara was a suit for partition of the properties belonging to the said Sankara Warrier's family. In this suit two members of the family, of which the respondent herein it one, were appointed receivers for management of the variyam properties. In their capacity as receivers they have filed E. A. No. 1404/66 on the file of the Munsiff's Court, Mavelikkara claiming that the amount deposited by the said Sankara Warrier did not belong to him personally, that he was impleaded in the suit in his capacity as the karanavan of the variyam, that the deposit was made out of funds belonging to the variyam, that he had no right whatsoever personally over the amount in deposit and that, as such, the attachment on the basis that the amount belonged to the judgment-debtor personally is bad and is, therefore, liable to be cancelled. The learned Munsiff went into the question and having been satisfied that the claim put forward by the claimant was true, allowed the petition. It may incidentally be noted that while E. A. 1404/66 was pending enquiry, the suit O. S. 18 of 1963 was disposed of on 4-2-1967. However, the respondent herein was permitted to continue the proceedings in E. A. 1404/66 in her capacity as a member of the family, though the petitioners in E. A. had ceased to be the receivers. This revision is directed against the order allowing the claim petition.

4. Various grounds have been taken in the revision. It is contended inter alia that the learned Munsiff had no jurisdiction to entertain the claim petition in view of the proviso to Rule 52 of Order XXI of the Code of Civil Procedure; it is the Court having custody of the amount that was competent to determine the claim, that there was no warrant for inferring that A. S. No. 178/62 was preferred by the judgment-debtor as the karanavan, that the deposit was made from the tarward funds, and that in any event the karanavan was not accountable to the junior members for the income from the tarwad properties. The learned Munsiff on a careful consideration has come to the conclusion that the amount of Rupees 1200/- lying in Court deposit in O. S. 105/56 on the file of the Sub-Court, Mavelikkara, which has been attached by the revision petitioner, did not belong personally to Sankara Warrier, but represented funds belonging to the tarwad or made available by the tarwad of which he was the karanavan. Reliance has been placed by the learned Munsiff on the directions and observations contained in Ext. X-1 judgment of the Sub-Court and Ext. X-2 order of this Court. No ground for interference by this Court with this finding has been made out by the revision petitioner. I, therefore, hold for the purpose of this petition that the amount that has been attached by the revision petitioner is the amount deposited by the tar-wad of which the respondent herein is a member.

5. The more important question for decision in this revision is the one relating to the jurisdiction of the Munsiff's Court, Mavelikkara to entertain the claim petition E. A. 1404/66. The contention of the learned counsel appearing for the revision petitioner is that in entertaining and enquiring into the matter the learned Munsiff acted without jurisdiction as, according to him, the Court competent to determine title or priority between the decree-holder and any other person is the Court which has the custody of the property. The learned counsel has drawn, my attention to the proviso to Rule 52 of Order XXI, C.P.C. Rule 52 of Order XXI reads as follows:--

'52. Attachment of property in custody of Court or public officer.--Where the property to be attached is in the custody of any Court or public officer, the attachment shall be made by a notice to such Court or officer, requesting that such property, and any interest or dividend becoming payable thereon, may be held subject to the further orders of the Court from which the notice is issued.

Provided that, where such property is in the custody of a Court, any question of title or priority arising between the decree-holder and any other person, not being the judgment-debtor, claiming to be interested in such property by virtue of any assignment, attachment or otherwise, shall be determined by such Court.' The argument advanced is that it being the admitted fact that the property attached is in the custody of Sub-Court, Mavelikkara, the question of title or priority arising between the revision petitioner, who is the decree-holder, and the respondent, who is the claimant, has to be determined by the Mavelikkara Court. In support of this contention the ruling given in Peter Morris v. Radhakrishna Films, 1969 Ker LR 797 has been cited before me. In that case, Subramonian Poti, J. has held as follows:-- 'Admittedly the attachment effected by the execution Court is of money in the custody of the High Court. The claim is one which relates to title to money attached, by strangers to the decree on the basis of an assignment. Therefore, the matter falls within the proviso to Order 21, Rule 52 of the Code of Civil Procedure. In that view, the Court below which passed the order impugned in this revision, ought not to have entertained the petition. There is no necessity, therefore, of deciding the question whether the claim petition was maintainable. It was not for that Court to go into that question. That petition ought to have been dismissed by the Court below on the ground that it was incompetent.'

6. The learned counsel appearing for the respondent submits that the facts leading to the claim petitions in the two cases could easily be distinguished and that the decision referred to above cannot be called in aid by the revision petitioner. The ruling cited related to a claim petition filed by strangers to the decree on the basis of an assignment. In this case the respondent does not base his claim on any assignment. The proviso to Rule 52 of Order XXI, C. P. C. can have application only to cases where the claim petition is by persons 'claiming to be interested in such property by virtue of any assignment, attachment or otherwise.'

7. The contention of the learned counsel appearing for the revision petitioner is that though the revision petitioner may not fall within the ambit of persons claiming by virtue of assignment or attachment, he may fall within the scope of persons claiming by virtue of what is contemplated by the word 'otherwise' used in the proviso. The learned counsel for the respondent disputes the correctness of this argument and submits that the word 'otherwise' cannot be construed to have such comprehensive meaning as to include every type of transaction that could be conceived of. The contention of the learned counsel is that, applying the principle ejusdem generis it must be held that the real scope of the proviso is that it is the Court having custody of the property that has to determine the title or priority of the respective claimants where there are more decree-holders or persons by virtue of assignments obtained or attachments effected, claiming the property. It is his further contention that the proviso could be attracted only in cases where the attachment as such is not disputed, and the controversy is confined as to the person or persons like decree-holders, assignees etc., Who are entitled to receive the property or in what proportion it is to be distributed among the several claimants. It is pointed out that in the case reported in Peter Morris v. Radhakrishna Films, 1969 Ker LR 797 the validity of the attachment does not appear to have been in dispute. The real question there considered was whether the claimants who claimed on the basis of an assignment in their favour before the deposit of the money were entitled to sustain the petition. On a consideration of the relevant provisions contained in Order XXI of the C. P. C, I am inclined to hold that the proviso to Rule 52 of Order XXI, C. P. C does not operate as a bar against a Court entertaining and enquiring into a claim petition wherein the allegation is that the attachment of the amount lying in the custody of another court is invalid or illegal and the claimant is the person entitled to the amount under attachment. In this view the contention of the learned counsel for the revision petitioner that the learned Munsiff acted without jurisdiction in entertaining and enquiring into the claim petition has only to be rejected.

8. Lastly, it was contended that to begin with the claim petition was by the respondent herein and another in their capacity as receivers, and that such capacity did not exist at the time when the claim petition was finally disposed of. It is an admitted fact that the Court had granted leave to the respondent herein to continue the proceedings, though not in the capacity of a receiver, but as a member of the tarwad to which according to the claimant, the amount under attachment belonged. It is, therefore, idle for the revision petitioner to contend at this stage that the claim petition should have been rejected, as the claimant ceased to have the capacity of a receiver by the time the petition came up for final disposal. The question whether the absence of such leave being granted by the Court, the claim could have been pursued by the claimant need not be gone into in this revision.

9. No other point arises for consideration. The revision fails and is dismissed. In the circumstances of the case, there will be no order as to costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //