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The United Motor Finance Company Vs. Fiat Motors Eastern India Agency - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1939Mad699; (1939)2MLJ80
AppellantThe United Motor Finance Company
RespondentFiat Motors Eastern India Agency
Cases ReferredBivi Ammal v. Union Bank
Excerpt:
.....in order 21, rule 42 would seem to indicate that a decree directing an enquiry as to rent or mesne profits or any other matter, like the one in question, damages, is not a decree for payment of money. this, it appears, is precisely what happened in the present case. therefore the use of the words 'as in the case of an ordinary decree for the payment of money' clearly show that in a case where a decree directs an inquiry as to mesne profits the decree so far as the mesne profits are concerned would be a decree for money though it may not be an ordinary decree for money. therefore, the said decision clearly implies that both the conditions were fulfilled in the case thus further implying that the application for attachment under section 2s5 would be an application for execution. but..........in order 21, rule 42 would seem to indicate that a decree directing an enquiry as to rent or mesne profits or any other matter, like the one in question, damages, is not a decree for payment of money. but on a close examination of the sections in the light afforded by the history of the sections and the interpretation placed on the corresponding provisions in the prior codes of civil procedure, i have come to a different conclusion. in the code of 1859 there was no provision corresponding to order 21, rule 42, civil procedure code. the relevant sections of the said code bearing on the matter are sections 201, 232 and 219. section 201 so far as it is relevant for the purpose of this case, runs thus:if the decree be for money, it shall be enforced by the imprisonment of the party.....
Judgment:

Venkataramana Rao, J.

1. The question in this appeal is whether a plaintiff who has obtained a decree directing an enquiry as to damages is entitled to invoke the aid of Order 21, Rule 41, Civil Procedure Code, in order to enable him to effect an attachment in pursuance of the right given to him under Order 21, Rule 42, Civil Procedure Code. The learned Master took the view that he is not entitled to the benefit of Order 21, Rule 41, Civil Procedure Code. The language of Order 21, Rules 41 and 42 prima facie tends in favour of the said view. The words as in the case of an ordinary decree for the payment of money' in Order 21, Rule 42 would seem to indicate that a decree directing an enquiry as to rent or mesne profits or any other matter, like the one in question, damages, is not a decree for payment of money. But on a close examination of the sections in the light afforded by the history of the sections and the interpretation placed on the corresponding provisions in the prior Codes of Civil Procedure, I have come to a different conclusion. In the Code of 1859 there was no provision corresponding to Order 21, Rule 42, Civil Procedure Code. The relevant sections of the said Code bearing on the matter are Sections 201, 232 and 219. Section 201 so far as it is relevant for the purpose of this case, runs thus:

If the decree be for money, it shall be enforced by the imprisonment of the party against whom the decree is made, or by the attachment and sale of his property, or by both if necessary.

2. Section 232 is in these terms:

If the decree be for money, and the amount thereof is to be levied from the property of the person against Whom the same may have been pronounced-the Court shall cause the property to be attached in the manner following.

3. In Sharoda Moyee Burmonee v. Wooma Moyee Burmonee (1867) 8 W.R. 9, there was a decree for possession and mesne profits the amount of which had to be determined in the course of the execution. It was held that the decree for mesne profits was a decree for money within the meaning of Section 232 of Act VIII of 1859. After getting possession of the property in pursuance of the decree an application for attachment of certain property was made and effected and after the amount of mesne profits had been determined the sale of the property took place. Objection was taken to the legality of the sale on the ground that there was no legal attachment of the property previous to the sale. This contention was negatived both by Justice Jackson and Justice Hobhouse on the ground that the decree for mesne profits was a decree for money and attachment could be effected in pursuance of such a decree. Justice Jackson remarked thus:

This decree, it seems to me, was a decree for money within the terms of Section 232 of the Civil Procedure Code, and, that being so, I see no irregularity in the decree-holder applying for attachment of the judgment-debtor's property, so that the property might be held in attachment, and protected from alienation pending the ascertainment of wassilat, that is of the precise amount of money due. This, it appears, is precisely what happened in the present case. The enquiry into the amount of wassilat was going on, and the property was held under attachment, and, when the amount of wassilat had been determined, and not until then, notice of sale was issued, and the sale took place. The sale, therefore, at any rate, was in satisfaction of a decree for money of which the amount had been by that time ascertained.

4. To the similar effect Justice Hobhouse says:

Then, as to the attachment, I think that this decree was, in reality, a decree for money. It did riot and could not have stated the exact amount of money; it did state that a certain amount of wassilat or mesne profits was to be ascertained and obtained. That being so, it was a decree for money, and, being a decree for money under Sections 232 and 235 of the Civil Procedure Code, an attachment properly followed upon the decree.

5. In the view taken by the learned Judges, namely, that though the amount of mesrie profits, was to be ascertained the decree represented a sum of money and was therefore a decree for money, Section 219 of the Code would be applicable, and that section ran thus:

Before granting the order for a general attachment, or at the instance of the plaintiff at any time after judgment, and before complete execution of the decree, the Court may summon the person against whom the application is made, and examine him as to the property liable to be seized in satisfaction of the judgment. The Court may also of its own motion or at the instance of any person interested in the enquiry, summon any other person whom it may think necessary and examine him in respect to such property, and may require the person summoned to produce all deeds and documents in his possession or power relating to such property.

6. From the language of the section it is clear that that section can be availed of by a decree-holder after judgment and before complete execution of the decree and in the case of preliminary decrees complete execution cannot be had till the amount is finally fixed. Two years after the decision in Sharoda Moyee Burmonee v. Wooma Moyee Burwonee (1867) 8 W.R. 9, Sir Barnes Peacock observed that where a decree awarded possession and directed an enquiry as to mesne profits the decree as to mesne profits could not be executed until they were ascertained. Haro Sanker Sandyal v. Tarak Chandra Bhuttacharjee (1869) 3 B. L.R. 114 . Justice Jackson was a party to this judgment. It was with reference to this view that the legislature in enacting the Code of 1877 replaced Sections 230 and 231 by Sections 254 and 255 which ran thus:

Section 254. - Every decree or order directing a party to pay money, as compensation or costs, or as the alternative to some other relief granted by the decree or order, or otherwise, may be enforced by the imprisonment of the judgment-debtor, or by the attachment and sale of his property in manner hereafter provided, or by both.

Section 255. - If the decree be for mesne profits or any other matter the amount of which in money is to be subsequently determined, the property of the judgment-debtor may, before the amount due from him under the decree has been ascertained, be attached as in the case of an ordinary decree for money.

7. Section 254, replaced Sections 201 and 232 of the Code of 1859 and Section 255 has been enacted in accordance with the decision in Sharoda Moyee Burmonee v. Wootna Moyee Burmonee (1867) 8 W.R. 9. The use of the word 'ordinary' in Section 255 is significant. The Legislature has used that word to mark the difference between a decree for money simpliciter and a composite decree for possession and mesne profits which would not be strictly a decree for money. Therefore the use of the words 'as in the case of an ordinary decree for the payment of money' clearly show that in a case where a decree directs an inquiry as to mesne profits the decree so far as the mesne profits are concerned would be a decree for money though it may not be an ordinary decree for money. In Viraraghava Aiyangar v. Varada Aiyangar I.L.R.(1882) 5 Mad. 123, a question arose whether a decree for mesne profits was a decree for money. The petitioner in that case who held a decree for mesne profits, not yet ascertained, applied on 28th June, 1881, to the Court of the Subordinate Judge of Kumbakonam to stay the sale of the judgment-debtor's land which was being brought in execution of another decree in order that he might attach the land in execution of his decree. This application was rejected on 29th June, on which date the property was also sold. On the same date after the rejection of the application the said petitioner applied to the Court for a rateable distribution of the proceeds of the sale. The question was whether he would be entitled to such a rateable distribution under Section 295 of the Code. Held he would be. The judgment of the Court (Turner, C.J. and Multuswami Aiyar, J.) was delivered by Turner, C.J., who remarked thus:

The decree held by the petitioner for mesne profits was a decree for money. Although the amount was still uncertain, the petitioner had applied to the Court to execute that decree. He had not only petitioned that the mesne profits should be ascertained but he had applied on 1st April, 1881, to attach certain immovable property under Section 255. He came within the purview of Section 295.

8. Therefore the decision is a clear authority for the position that a decree directing an inquiry as to mesne profits is a decree for money within the meaning of Sections 255 and 295. Section 295 imposes two conditions; the decree-holder who applied for rateable distribution must hold a decree for money and he must have applied for the execution of the said decree. Therefore, the said decision clearly implies that both the conditions were fulfilled in the case thus further implying that the application for attachment under Section 2S5 would be an application for execution. Of course under the Codes of 1859, 1877 and 1882 an enquiry into unascertained rent or mesne profits was to be had only in execution and therefore it may be taken that the application for attachment was made in the course of the application for the execution of the decree. In this view therefore such a decree-holder can certainly invoke the provisions of Section 267 of the Code of 1877 which replaced Section 219 of the Code of 1859 and which section ran thus:

The Court may, of its own motion or on the application of the decree-holder, summon any person whom it thinks necessary, and examine him in respect to any property liable to be seized in satisfaction of the decree, and may require the person summoned to produce any document in his possession or power relating to such property, and before issuing the summons of its own motion, shall declare the person on whose behalf the summons is so issued.

9. It will be seen that this section is very general in its terms. The decision in Viraraghava Aiyangar v. Varada Aiyangar I.L.R. (1882) 5 Mad. 123, was followed in Ramaswami Aiyar v. Rama Aiyar : (1892)2MLJ288 , a decision under the Code of 1882. The question there was whether a decree for unascertained mesne profits was a decree for money and might be attached in the mode prescribed by Section 273 of the Code which now corresponds to Order 21, Rule 53 of the present Code. The learned Judges Muttuswami Aiyar and Wilkinson, JJ.) observed thus:

As observed by Hobhouse, J., in Sharoda Moyee Burmonee v. Wooma Moyee Burmonee (1867) 8 W.R. 9, with reference to Section 232, Act VIII of 1859, the decree was a decree for money in the sense that it represented a sum of money to be ascertained hereafter. It was also held in Viraraghava Aiyangar v. Varada Aiyangar I.L.R.(1882) 5 Mad. 123, that the holder of a decree for unascertained mesne profits is of a money decree for the purpose of claiming rateable distribution under Section 295.

10. Therefore up to the passing of the present Code the law is fairly clear that the holder of a decree directing inquiry into mesne profits can apply to the Court to have the judgment-debtor examined in order to ascertain what property he is possessed of for the purpose of effecting an attachment of the property in order to enable him to get satisfaction of his decree. Of course the purpose of the attachment is, as pointed out in Sharoda Moyee Burmonee v. Wooma Moyee Burmonee (1867) 8 W.R. 9, to serve as a measure of protection to the decree-holder, to prevent the judgment-debtor from alienating the property and to enable the decree-holder to obtain satisfaction of his decree.

11. The question is, has there been any change in the law under the present Code? Order 21, Rule 42 replaces Section 255 of the Code of 1877, 1882 and Order 21, Rule 41 replaces Section 267 of the Code of 1877, 1882; the only difference introduced in the Code is that where a decree directs an inquiry into the mesne profits the enquiry is in the suit itself and not by way of execution; but still the principle of Section 255 is retained in enacting Order 21, Rule 42. This seems to indicate that a partial execution is permitted in the case of a decree directing an inquiry into mesne profits pending the final ascertainment of the same. But the interpretation adopted under the old Code in regard to a decree for unascertained mesne profits or to a similar relief would still hold good and that was the view taken by a Bench of this Court Madhavan Nair and Jackson, JJ.), in a case reported in Ramasami Aiyar v. Vedambal Ammal (1934) 67 M.L.J. 303 : I.L.R. 58 Mad. 233. They have followed Viraraghava Aiyangar v. Varada Aiyangar I.L.R.(1882) 5 Mad. 123, and held that in spite of the difference in procedure in the ascertainment of mesne profits, a decree directing an inquiry into mesne profits would be a decree for the payment of money within the meaning of Order 21, Rule 42 so as to entitle such a decree-holder to obtain a rateable distribution under Section 73 of the present Code. Madhavan Nair, J., who delivered the judgment of the Court referring to Order 21, Rule 42 observed thus:

This provision, in our opinion, treats the attachment, as a proceeding in execution of the decree and the application for attachment may well therefore be treated as one for execution.

12. In this view therefore Order 21, Rule 41 would be applicable to the case. As pointed out by me in the decision reported in Bivi Ammal v. Union Bank, Ltd. A.I.R. 1938 Mad. 771 the Court is vested with the discretion to give the relief under Order 21, Rule 41 or not. In the view taken by the learned Master, I find that he has not gone into that question. I therefore reverse the decision of the learned Master and send the application back to him for considering whether in the circumstances of the case he would exercise his discretion and issue an order for the examination of the judgment-debtor as prayed for by the applicant. The costs of the appeal will abide the result.


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