N.M. Miabhoy, J.
1. This revision petition is directed against the order dated 18 September 1959 passed by the learned Civil Judge (S.D.) Baroda in Darkhast No. 636 of 1958 by which the learned Judge dismissed an application of the petitioner the Union of India for raising an attachment levied by the learned Judge on parts of two money order amounts remitted by the opponent No. 3 the trustees of the Provident Fund of the staff of Shree Ambica Mills Ltd. (No. 3) to the opponent No 2 Lalkhan Husainkhan. The opponent No. 1 obtained a decree in a small cause suit against opponent No. 2 and filed Darkhast No. 636 of 1958 for recovery of the decretal amount. The opponent No. 2 was a mill hand working in Shree Ambica Mills Ltd. and the trustees of the provident fund of the staff of those Mills held an amount of Rs. 1 0 for the benefit of the opponent No. 2. It appears that after opponent No. 2 was discharged the trustees closed the account of the opponent No. 2 and sent an amount of Rs. 1 0 to the opponent No. 2 by two money orders. The amount was paid to the postal authorities with money order forms on 29-1-1959. On the same day the opponent No. 1 obtained a prohibitory order in the aforesaid darkhast from the learned Civil Judge (S.D.) Baroda prohibiting the Union of India from paying a sum of Rs. 664-70 nP. that beeing the decretal amount to the opponent No. 2 from the amount of Rs. 1 0 On this the amount of Rs. 664.70 nP. was deposited by the postal authorities in the Court. They however made an application on 9-7-1959 for raising the attachment. The application was based on the ground that the attached amount belonged to the remitter the opponent No. 3 and that therefore it was not attachable as the property of the opponent No 2. The second ground was that the amount being the provident fund money of the opponent No. 2 was not attachable by virtue of the provision contained in Section 10 of the Employees Provident Fund Act. It appears from the order of the learned Judge that the postal authorities placed reliance upon the provisions of Section 44 of the Post Offices Act 1898 and rule No. 297 of the Rules framed by the Central Government under Section 43 of the same Act. Section 44 provides that a person remitting money through the Post Office by means of a money order may require that the amount of the order if not paid to the payee be repaid to him or be paid to such persons other than the original payee as he may direct. Rule 297 provides that in all cases where a money order is attached in the hand of the Post Office on a decree against the payee payment of the attached amount in the Court should only be made after reference to the remitter and only in case he does not object to such payment. Because of these provisions the learned Judge directed the postal authorities to contact the remitter and to ascertain from the remitter whether it had any objection to the payment of the attached amount into the Court. On this the postal authorities contacted the opponent No. 3 and the trustees sent the reply dated 30th January 1959. The reply of the trustees appeared to be vague and equivocal and that reply did not state in specific terms as required by Rule 297 that it had no objection to the amount being paid into Court. Therefore after the production of the aforesaid reply the petitioner contended that Rule 297 had not been complied with and the attachment should be raised. On this the learned Judge directed by his order on 29th August 1959 that a second reference should be made to the remitter and it should be specifically ascertained from the trustees whether they had any objection to the amount being deposited into the Court. On this the trustees sent the second reply Ex. 18 dated 7-9-1959. This reply was to the effect that the trustees did not understand what sort of consent or dissent they were called upon to give. They further stated that they had made the position clear that it was not for them to give any consent or dissent and they further stated that the matter should be decided according to law. The learned Judge construed this latter reply as showing that the trustees had not withheld their consent for depositing the attached amount and therefore refused to raise the attachment. Hence the Union of India has preferred this revision application. There cannot be any doubt whatsoever that the view taken by the learned Judge about the latest reply of opponent No. 3 is not at all justified. Neither in their first reply nor in their second reply the trustees ever stated in specific term that the amount should be paid into the Court. Under the circumstances so far as the postal authorities are concerned they would be justified in taking up the position which they have done viz. that in law the amount is not liable to be attached in their hands and the question has got to be decided apart from the provisions of Rule 297 referred to above. Now having regard to the provisions of Section 44 of the Post Offices Act and Rule 297 in my judgment it is crystal clear that a money order amount in the course of transmission in the hands of the postal authorities is at the disposal of the remitter and does not cease to be the property of the remitter and does not become the property of the payee, in spite of the amount having been handed over to the postal authorities by the remitter the amount is liable to be recalled by the remitter at any time before the amount is paid into the hands of the payee. The remitter may either direct that the amount should be repaid to him or that the amount should be paid to some person other than the payee. If the amount had become the property of the payee on its being handed over to the postal authorities the above provisions could hardly have been made by the Legislature. It is obvious that there is no privity of contract between the postal authorities and the payee. The privity of contract is between the remitter and the postal authorities and broadly speaking it is the remitter who constitutes the postal authorities his agent for the amount being paid to the payee and so long as the agent has not carried out the instructions and fulfilled the mission the principal has the right of directing to his agent as to how the amount shall be disposed off and the agent can ignore the instructions only at his peril. Therefore both under the general law and the provisions contained in Section 44 of the Post Offices Act there cannot be any doubt that the payee has no attachable interest in the amount of the money order during the course of its transmission and whilst it is still in the hands of the postal authorities. In view of my finding that neither the letter Ex. 15 nor the letter Ex. 18 embodies the consent of the remitter to pay the amount to the opponent No. 2 in my judgment prima facie the amount is not attachable as being the property of the opponent No. 2.
2. Mr. Shah however contends that the true interpretation of Section 44 and Rule 297 is that the property passes from the remitter to the payee and only an option is given to the remitter to recall the amount if he so chooses and that if the remitter does not exercise the option at any time then the amount is attachable during the course of its transmission whilst it is in the hands of the postal authorities. I am unable to agree with this submission of Mr. Shah. In my judgment neither the general law nor the special provisions contained in Section 44 aforesaid justify this submission. As already pointed out by me the payee is never in the picture at the time when an amount is remitted by the remitter by a money order through the postal authorities. The provisions contained in Section 44 and Rule 297 emphasise the position that the amount is at the disposal of the remitter and does not become the property of the payee until the mission is fulfilled by the postal authorities.
Mr. Shah however contends that though the aforesaid position may ordinarily be correct the position will change if the payee has issued instructions to the remitter to send the amount due to him by a money order and the remitter carries out the instructions of the payee. He contends that in the latter case the Post Office becomes the agent of the payee and the moment the amount is handed over to the Post Office to be remitted the amount becomes the property of the payee. In support of this proposition Mr. Shah relies upon the case of Commr. of Income tax Bombay South Bombay v. Messrs Ogale Glass Works Ltd. Ogale Wadi reported in : 25ITR259(SC) The relevant observations of their Lordships are to be found at page 435. In this case the question which was raised before Their Lordships did not relate to a money order. The question related to a letter dispatched by the sender to an addressee. In that case a cheque was sent in a letter and the question for consideration was whether on the despatch of the letter the cheque became the property of the addressee or remained the property of the sender. In that case there was one further fact on which ultimately the decision of Their Lordships was based and that further fact was that the cheque had been despatched to the addressee by the sender at the specific request of the addressee. Their Lordships held that under such circumstances the Post Office had been constituted by the addressee as his agent and the cheque was not recallable by the sender. In arriving at this conclusion Their Lordships made a reference to the provisions contained in the Indian Post Offices Act relating to despatch of letters and an argument which was advanced at the bar on the basis of those provisions that immediately upon the posting of the cheque the Post Office did not become the agent of the addressee upon the posting of the cheque. In my judgment it is not necessary to examine at this stage whether there is any difference in law between the despatch of a letter under the aforesaid circumstances and the remittance of a money order amount under the same circumstances. It is not necessary to do so at this stage because there is no proof on record to the effect that the amount of the money order was despatched by the opponent No. 3 to opponent No. 2 at the latters request. The principle laid down by Their Lordships of the Supreme Court in the aforesaid ruling in relation to the despatch of a cheque can be applied only on two conditions being satisfied. Firstly the Court must be satisfied that the law in relation to the remittance of a money order is the same as the law relating to the despatch of a letter and secondly that in this case the opponent No. 2 had given instructions to the opponent No. 3 to send the amount by money order. But as I have already stated there is no proof on the latter subject and therefore I need not undertake an examination of the law on the same subject at this stage. But Mr. Shah contends that it was opponent No. 3s own case that the amount was sent by money order at the specific request of the opponent No 2 and for this purpose he relies upon paragraph I of the written-statement filed by the opponent No. 3 on 14-8-1959. This is true. But the contention of the petitioner is that pleading is no proof. In order that the petitioner may be properly protected it is necessary that there should be proper proof adduced on the subject. Mr. Shah says that he is in possession of a copy of a letter addressed by the opponent No. 2 to the opponent No. 3 on the subject, and no proof was adduced on this aspect because the opponents Nos. 2 and 3 thought that they had a good case under Section 44 and Rule 297 and because they construed the letter Ex. 18 as giving consent. The learned Assistant Government Pleader has no objection if this matter is thrashed out over again. Under the circumstances whilst setting aside the order refusing to set aside the attachment I propose to remand the matter to the learned Judge with a direction that he shall decide this additional point based upon paragraphs 1 and 2 of the written-statement dated 14-8-1959 and afford an opportunity to the opponent No. 1 to raise the point based upon paragraphs 1 and 2 of the written-statement of the opponent No. 3.
3. It appears that during the pendency of this petition a compromise was made Between opponents Nos. 1 and 2 by which they agreed amongst themselves that the sum which was now due to the opponent No. 1 from opponent No. 2 was Rs. 450/- and that from out of the attached amount that sum might be paid to the opponent No. 1 and the balance might be paid to the opponent No. 2. Mr. Shah contends that in view of this compromise the objection of the petitioner does not survive. I cannot agree. The opponent No. 3 is not a party to the aforesaid compromise and having regard to my conclusion that prima facie the property in the money order amount belongs to the opponent No. 3 a compromise arrived at in the absense of the opponent No. 3 cannot be given effect to.
Rule made absolute and the matter remanded to the darkhast Court for recording a finding on the fresh point mentioned in this judgment and then disposing of the original application according to law. The costs of this petition shall be cost in the cause.