1. The 1st respondent is declared to be of age and allowed to proceed with the appeal. A vakalat has been filed on his behalf.
2. In this case, the plaintiff-appellant sued on a promissory note under the Summary procedure prescribed by Order XXXVII of the Civil Procedure Code and obtained a decree. The 1st defendant did not obtain leave to contest the suit and after the decree he applied under Order XXXVII, Rule 4, Civil Procedure Code for setting aside the decree. The decree was set aside on his depositing into court the amount sued for. Then the suit was tried again and judgment given against him (1st defendant). His brother who was the 3rd defendant in the original suit claimed that the money which was deposited by the 1st defendant belonged to the joint family and was not therefore available to the plaintiff, his judgment creditor. The Subordinate Judge disallowed this contention, but the lower appellate Court while observing that the question really did not arise in the suit itself but was one to be settled in execution, held that if the money came from the joint family property, the plaintiff, i.e., the appellant was not entitled to it. We think this view of the law is wrong. The money was deposited clearly as security for satisfying any judgment that might be passed against the 1st defendant and the deposit made a condition precedent to the setting aside of the decree originally passed by the Subordinate Judge. The point is covered by a decision of this Court in L.P.A. No. 364 of 1914 where Mr. Justice Sadasiva Aiyar and Mr. Justice Napier held that the decree amount in cases of this nature must be regarded as being charged on the money deposited. Rule 4 of Order XXXVII, Civil Procedure Code corresponds to Rule 6 of Order XIV of the English Judicature Act and it has been decided under this rule that the money deposited would not belong to the trustee in bankruptcy of the defendant but to the plaintiff in the suit who has succeeded in obtaining Judgment. In re Ford : Ex parte. The trustee. (1900) 3 Q.B. 211 There is also another decision of the English Court very much in point Bird v. Barston (1892) 1 Q.B. 94 There money was deposited by a married woman and the question was afterwards raised that it was not available to the plaintiff inasmuch as it was the separate property of the woman. Lord Esher M.R. in disallowing the contention held that no such enquiry should be embarked on inasmuch as the money was deposited for the express purpose of the suit. The learned pleader for the 1st respondent has relied on a ruling of the learned Chief Justice and Mr. Justice Seshagiri Aiyar in Errikulappa Chetty v. Official Assignee, Madras (1915) 32 I.C. 190. Here money was deposited under Rule 5 Order XXXVIII, Civil Procedure Code as security against removal of the property of the defendant sought to be attached before judgment, from the jurisdiction of the Court. There in making the deposit all that the defendant undertook was that he would not remove the property which was sought to be attached from the jurisdiction of the Court; and if he satisfied that undertaking it could not be said that the amount deposited should be available in any way to the plaintiff in the suit if he recovered judgment. This is pointed out by both the learned Judges who held that the money deposited was available not only to the plaintiff in the suit but also to other creditors of the defendant. That is quite different from the present case. Here, the money was deposited in Court for the purpose of satisfying the decree passed in the suit. There would be no use in ordering the defendant to make a deposit of money as security in such cases as this if when judgment is passed the decretal amount cannot be treated as a charge on the deposit. The case may be different, though it is not necessary to express any opinion with regard to that question, if what is furnished as security is specific property such as land. In such a case it might be possible to contend that the defendant is not in fact owner of the property but somebody else and that the title of the real owner would not be lost. But money stands on a different footing ; it is capable of being passed from hand to hand and it is hard to conceive that where the legislature has required that in certain circumstances the defendant should deposit as security, in order to secure to the plaintiff his rights on recovering judgment, that an enquiry was to be instituted as to how or from what source the defendant obtained the money. The whole object of requiring security in these c-ises would be frustrated if such an enquiry was admissible.
3. The appeal is allowed and the decree of the Subordinate Judge restored with costs here and in the court below.