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Alagirisami Pillai Vs. Lakshmanan Chetty Alias Samuel Chetty and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in(1926)50MLJ79
AppellantAlagirisami Pillai
RespondentLakshmanan Chetty Alias Samuel Chetty and anr.
Cases ReferredSyed Tuffuzzool Husain Khan v. Raghunath Per.
Excerpt:
.....the attaching creditor's rights be then defeated by the debtor converting the simple debt into a decree debt and receiving payment? this contention seems to me to be perfectly sound. 10. the view i have taken receives strong support from muthia chetty v. first, it is argued that as lakshmana who certified that the decree was satisfied could not execute it, the appellant could have no higher rights under section 146. this argument is based upon a misapprehension. 15. it is a well-known rule of construction that if the gift and direction as to payment are distinct, the direction as to the time of payment does not postpone the vesting. 18. the appellant claimed to execute the decree under rule '16 of order 21. he did not attach lakshmanan chetti's decree under rule 53 of order 21, and in..........1921, the appellant applied for permission to execute under rule 16 of order 21, civil procedure code, lakshmanan chetti's decree against ramalinga chetti in o.s. no. 772 of 1920. that is the petition against the dismissal of which, after confirmation of the dismissal by the subordinate judge, the present appeal is preferred.18. the appellant claimed to execute the decree under rule '16 of order 21. he did not attach lakshmanan chetti's decree under rule 53 of order 21, and in explanation of his failure to do so it is suggested that he could not do so because the recording of satisfaction on 2nd march, 1921, stood in his way. i may remark that, if the recording of satisfaction stood in the way of his attaching the decree in july, 1921, it equally stood in the way of the appellant.....
Judgment:

Venkatasubba Rao, J.

1. Before dealing with the questions of law raised, I shall briefly set forth the facts.

2. Lakshmanan Chetty entered into a partition with his coparceners under the deed of division dated 9th February, 1918. A sum of money fell to his share and this sum was retained under the terms of that deed with his brother Ramalinga Chetty. The appellant filed a suit for money (O.S. No 495 of 1919) against Lakshmanan and attached before judgment the debt due to him under the partition deed. The appellant on 3rd July, 1919, obtained a decree in his suit. Lakshmanan some time after this filed a suit against Ramalinga (O.S. No. 772 of 1920) for recovery of the money due to him under the partition deed and obtained a decree. Lakshmanan and Ramalinga within a month of this decree entered into a settlement and Lakshmanan reported satisfaction which was recorded.

3. The decree was obtained by Lakshmanan in O.S. No. 772 of 1920 on the 2nd February, 1921, satisfaction was entered on 2nd March, 1921 and the appellant on 27th July, 1921, applied to execute the decree in O.S. No. 772 of 1920.

4. The first question that has to be determined is, can the appellant who has attached the debt but who has failed to attach this decree execute it as if he has attached the decree also?

5. The attachment of a debt is effected under Order 21, Rule 46, Civil Procedure Code. It is made by a written order prohibiting the creditor from recovering the debt and the debtor from paying it. It is conceded that the attachment was in force on the date Ramalinga alleges he satisfied the decree by payment to Lakshmana. Ramalinga in making the payment acted in contravention of the prohibitory order and Lakshmana in receiving the debt was equally guilty of disobedience of that order.

6. Under Section 64, Civil Procedure Code, any payment to the judgment-debtor contrary to the attachment is void as against all claims enforceable under the attachment. For the appellant Mr. B. Sitarama Rao, his learned Vakil, contends that if it was incumbent upon him to follow up the attachment of the debt by attaching the decree Ramalinga could successfully plead that his payment was not void against the attachment of the decree. In other words, if the appellant could trace his rights to the attachment of the debt, the payment relied on by Ramalinga subsequent to that attachment would be void against it; but if the source of the appellant's title should be held to be attachment of the decree, Ramalinga could successfully rely upon the payment made prior to that attachment. To bring out the point of Mr. Sitarama Rao's contention I shall take an illustration. A attaches a debt due from C to B. Then: B sues C and obtains a decree. On the same day as Judgment is obtained C pays up the amount to B. If the right rule is that the decree must be attached A may be easily defeated, for even more than ordinary diligence on his part will not prevent B from receiving and C from paying the sum decreed.

7. The Civil Procedure Code does not contain a provision to the effect that the payment shall be void not only as against the later attachment of the decree but also as against the prior attachment of the debt. To this extent there is a lacuna in the Code. But by a distinct provision the creditor is prohibited from paying the debt attached. In the circumstances, what is the reasonable view to take? I am prepared to hold that the attachment placed on the debt fastens itself on the* decree without any further act on the part of the attaching creditor. The debt matures into and merges in the decree and the attachment gets naturally transferred from the debt to the decree. Consistent with the policy and the provisions of the Code this in my opinion is the only reasonable view to take. It has been held by the Judicial Committee in Beti Maharani v. The Collector of Etawah I.L.R. (1894) A 198 that when a debt is attached a suit for its recovery is not stayed. The order of attachment is in-fringed only if the restrained creditor pays the debt to the restrained debtor and it is pointed out that very often it may be desirable to institute a suit. Can the attaching creditor's rights be then defeated by the debtor converting the simple debt into a decree debt and receiving payment? The common sense of the thing demands that this cannot be countenanced.

8. The appellant's learned Vakil relies upon Section 146, Civil Procedure Code, which runs thus:

Save as otherwise provided by this Code or by any law for the time being in force where any proceeding may be taken or application made by or against any person, then the proceeding may be taken or the application may be made by or against any person claiming under him.

9. Lakshmana could apply to execute the decree. The appellant as one claiming under him could likewise execute it. This contention seems to me to be perfectly sound. The respondents' learned Vakil urges that Order 21, Rule 16 governs the case of a transferred decree-holder, that that provision is complete and self-contained and Section 146 cannot be invoked. I cannot accept this argument. Is there anything in Order 21, Rule 16 prohibiting persons other than those mentioned in it from being treated as transferee decree-holders? It is only in that case that Section 146 will not apply by reason of the words ' save as otherwise provided by this Code.' To place a narrow construction on Section 146 will be to defeat the very object of that section. In the very nature of things, it is impossible to piovide by express provision for every conceivable set of facts that may arise. It is just to meet this contingency that Sections 146 and 151 have been enacted. I am against whittling clown the scope of Section 146 by placing a too limited and narrow construction upon it. It must receive its full effect and I think the appellant can invoke it in the present instance.

10. The view I have taken receives strong support from Muthia Chetty v. Lodd Govindoss Krishnadoss I.L.R (1921) M. 919 The point that had to be decided was, could a transferee of a part of the decree execute it? It was contended that he could not and for that position reliance was placed on Order 21, Rules 15 and 16 The contention advanced may be put thus: Rule 15 refers to a case of a decree passed jointly in favour of two or more persons. In that case, application for execution of the whole decree may be made by one or more of the joint decree-holders. Next Rule 16 provides for the transfer (1) of an entire decree, and (2) of the interest of a decree-holder in a decree passed jointly in favour of two or more persons. It was argued that the transfer by a decree-holder of a part of a decree does not fall either under Rule 15 or Rule 16 and the transferee in that case could not therefore execute the decree. It need hardly be observed that this was a most unjust contention, the Full Bench holding that Section 146 was applicable rejected the argument. Wallis, C.J., observes that the section should receive a beneficial interpretation and as execution by a transferee of a part of a decree is not prohibited by Order 21, Rule 16, there is nothing to prevent Section 146 from receiving its full effect. With the observation of Kumaraswami Sastri, J., that the Courts ought not to refuse relief on the ground that the legislature has not made provision for a particular case, I entirely agree.

11. I do not think it necessary to refer in detail to the cases cited for the respondent where the scope of Section 146 was restricted. Mathurapore Zemindari Co. v. Bhasaram Mon-dal I.L.R. (1924) C 703 may be taken as representing a class of cases. But this may be easily distinguished as what was assigned was pro perty in the suit previous to the decree. In Shib Charan v. Ram Chandar A.I.R. 1922 All 98 which may also serve as a type, there was a transfer of the property subsequent to the decree and it was held that the transferee could not invoke Section 146. This case also is distinguished from the present. But I must dissent very respectfully from the observations made in it in regard to the effect to be given to Section 146. It will be moreover apparent that in the various cases relied on by the respondent (of which these two are typical) the transferee could have safeguarded his position by taking appropriate proceedings under the provisions of the Code. But in the present instance, this element is wanting and in my opinion this makes a very great difference.

12. I therefore hold that the appellant can rely upon Section 146. Two minor contentions I may now dispose of. First, it is argued that as Lakshmana who certified that the decree was satisfied could not execute it, the appellant could have no higher rights under Section 146. This argument is based upon a misapprehension. The appellant claims under Lakshmana in the sense that he acquired Lakshmana's rights as on the date of the decree. As I have remarked, the simple debt became merged in the decree debt and the moment the decree was passed the attachment of the debt became automatically converted into attachment of the decree, and any dealing by Lakshmana will not in consequence be of any avail.

13. The other contention has reference to certain facts which I have not so far mentioned. Lakshmana, previous to filing the suit (No. 772 of 1920) against Ramalinga for the recovery of the corpus, had instituted against him a suit for the interest on the debt. This suit was O.S. No. 231 of 1919 and was decreed on 16th December, 1919. The appellant attached this decree and realised on 27th July, 1920 about a tenth of the amount due to him. It is urged that the rights under the original attachment of the debt became thus exhausted and the appellant rendered himself incapable to pursue further remedies. This argument is untenable as what was attached was the entire debt and the recovery of a portion cannot bar the recovery of the balance.

14. Then remains one of the main contentions raised, namely, that the attachment is void as Lakshmana had only a contingent interest in the sum attached and Section 60, sub-clause (m), Civil Procedure Code, declares such an interest not liable to attachment. Whether Lakshmana took a vested or a contingent interest is a question of intention and on a construction of the partition deed I find no difficulty in holding that his interest was vested. It recites that the sum fell to Lakshmana's share but is to be retained by Ramalinga who is bound to pay it over to the former at his marriage. Ramalinga cannot in the meantime alienate his property and is enjoined to pay Lakshmana interest at a rate fixed.

15. It is a well-known rule of construction that if the gift and direction as to payment are distinct, the direction as to the time of payment does not postpone the vesting. The question is are there words constituting a gift independent of the direction to pay? If there are, the interest is a vested interest. In the deed in question, there is a present gift with a postponed payment and a vested interest is thus created. Batholomew's Trusts 1 Mac & C 354 Re Hart's Trusts 3 De G & J 195 at 202; Hawkins' Wills, 2nd Edn., 1912, p. 270 at 272).A stipulation that interest shall be given in the meantime shows that a present gift was intended. A bequest to A to be paid on his marriage with a clause that interest shall be paid till then, is vested. Vize v. Stoney 1 D & War 337. The result is that the last contention also fails.

16. My learned brother thinks that the attachment of the debt cannot become automatically transferred into an attachment of the decree. Although we take different views on this point our conclusions do not materially differ. According to my view, attachment of the decree in the circumstances is not essential; according to my learned brother's view, this attachment cannot be dispensed with, but neither the alleged payment by Ramalinga nor the order of the Court recording satisfaction is an obstacle in the way of the appellant executing the decree. On the point, namely, whether the appellant, if he' relies as a source of his title upon the attachment of the decree, can ignore a payment made prior to that attachment, I would prefer to express no opinion at present. Although we give different reasons for our conclusions, we are agreed that the appellant has not lost his remedy and that he is not bound By the alleged payment or the recording of satisfaction. I have therefore no objection to the appellant being directed to amend his execution petition by asking for attachment of the decree and I accordingly agree to the order being in the terms suggested in my learned brother's judgment.

Reilly, J.

I agree that Lakshmanan Chetti's interest in the Rs. 1,233, to which he was entitled under the partition-deed, Ex. III, was a vested interest and not a contingent interest and it was attachable under Section 60, Civil Procedure Code, and Rule 6 of Order 38, Civil Procedure Code, on 17th June, 1919, as a debt due to him, though on that date he could not enforce payment of it. But with great respect I find myself unable to agree that the appellant was entitled on the strength of his attachment before judgment to execute the decree for that amount which Lakshmanan Chetti afterwards obtained in O.S. No. 772 of 1920 on the District Munsif's file without attaching that decree.

17. My view of the position in this case is as follows: The appellant instituted O.S. No. 495 of 1919 on the District Munsif's file, a suit for money, against Lakshmanan Chetti (Respondent 1) and on 17th June, 1919, obtained in that suit an attachment before judgment of the debt due to Lakshmanan Chetti from his brother, Ramalinga Chetti (Respondent 2) under Ex. III. The attachment order is not before us; but it is admitted that it was in the usual form, prohibiting Lakshmanan Chetti from recovering the Rs. 1,233 or the interest on it and Ramalinga Chetti from paying that amount or the interest on it until the further order of the Court. On 3rd January, 1920, the appellant obtained a decree in his suit against Lakshmanan Chetti for Rs. 624. It is not disputed that the attachment order prohibiting Lakshmanan Chetti and Ramalinga Chetti from recovering and paying the debt respectively was not affected by that decree but remained in full force after the making of that decree. Meanwhile Lakshmanan chetti, who had filed O.S. No. 231 of 1919 against Ramalinga Chetti for the whole debt due to him under Ex. III, had, on 16th December, 1919,obtained a decree in that suit only for the interest on the principal amount, his claim for the principal amount being dismissed as premature on the ground that he had not then been married and therefore had not fulfilled the condition on which the principal was to become payable. The appellant's attachment before judgment did not prevent Lakshmanan Chetti from prosecuting that suit to a decree; but it did prohibit him from recovering any amount under his decree. The appellant then attached in execution of his own decree the decree for interest which Lakshmanan Chetti had obtained in O.S. No. 231 of 1919, executed the latter decree under Rule 53 of Order 21, Civil Procedure Code, and realised the amount due under it, Rs. 68-4-0, from Ramalinga Chetti. It has been suggested before us for Ramalinga Chetti that the execution of this decree of Lakshmanan Chetti against him for the interest so far due on the Rs. 1,233 somehow extinguished the appellant's attachment before judgment of the whole debt. I agree that that could not be so and that the order prohibiting Lakshmanan Chetti from recovering and Ramalinga Chetti from paying the debt persisted after the execution by the appellant of Lakshmanan Chetti's decree in O.S. No. 231 of 1919. Later on Lakshmanan Chetti fulfilled the condition of marriage and instituted another suit, O.S. No. 772 of 1920 on the District Munsif's file, against Ramalinga Chetti for the principal amount of Rs. 1,233 and the interest on it not so far recovered. That he was entitled to do in spite of the appellant's attachment before judgment; and he obtained a decree for the whole amount claimed and costs on 2nd February, 1921. That decree the appellant could have attached and executed under Rule 53 of Order 21, &.as he had already attached and executed the decree' in Lakshmsnan Chetti's previous suit, O.S. No. 231 of 1919. But before he bestirred himself to do so, Lakshmanan Chetti, on 22nd February, 1921, took out an arrest warrant against Ramalinga Chetti, who appears to have been arrested under it. On 2nd March, 1921, Lakshmanan Chetti reported to the Court that Ramalinga Chetti had paid the full amount of the decree to him, and the District Munsif recorded full satisfaction. On 27th July, 1921, the appellant applied for permission to execute under Rule 16 of Order 21, Civil Procedure Code, Lakshmanan Chetti's decree against Ramalinga Chetti in O.S. No. 772 of 1920. That is the petition against the dismissal of which, after confirmation of the dismissal by the Subordinate Judge, the present appeal is preferred.

18. The appellant claimed to execute the decree under Rule '16 of Order 21. He did not attach Lakshmanan Chetti's decree under Rule 53 of Order 21, and in explanation of his failure to do so it is suggested that he could not do so because the recording of satisfaction on 2nd March, 1921, stood in his way. I may remark that, if the recording of satisfaction stood in the way of his attaching the decree in July, 1921, it equally stood in the way of the appellant executing the decree as a transferee under Rule 16 of Order 21. But I cannot see that the recording of satisfaction was a bar to execution of the decree by the appellant. There is nothing sacrosanct about the recording of satisfaction. As between Lakshmanan Chetti and Rama-lnga Chetti the admission of Lakshmanan Chetti that he has received the full amount of the decree may be conclusive. So far as the purposes of the Court are concerned, the recording of satisfaction is a mere matter of office business, a note that those proceedings are closed. In my opinion it cannot be supposed for a moment that by settling the decree between themselves and getting the Court to record satisfaction as between them Lakshmanan Chetti and Ramalinga Chetti were able to defeat the rights of third parties, still less that they were able by so doing to evade the prohibitory order against them, which was still in force. To allow them so to defeat the order obtained by the appellant would be to allow a clear abuse of the process of the Court and a clear fraud upon the Court. It is not disputed that the District Munsif recorded satisfaction in ignorance of the appellant's attachment before judgment, which was not brought to his notice. Even between the parties to a decree an order recording satisfaction which' has been obtained by fraud may be vacated. See Paranjpe v. Kanade I.L.R. (1882) 6 Bom 148 and Vilakathala Raman v. Vayalil Pachu : (1914)27MLJ172 . As stated in Syed Tuffuzzool Husain Khan v. Raghunath Per. shad (1871) 14 M.I.A. 40, which was quoted before us for another purpose, 'to proceed so far as the practice of his Court will allow him to recall and cancel an invalid order is not simply permitted to, but is the duty of, a Judge who should always be vigilant not to allow the act of the Court itself to do wrong to the suitor. ' That principle is now clearly recognised in Section 151, Civil Procedure Code. In my opinion, had the appellant in July, 1921, applied for the attachment of Lakshmanan Chetti's decree in O.S. No. 772 of 1920 and had Ramalinga Chetti then objected that he had already satisfied the decree by payment to Lakshmanan Chetti, the answer would have been that that payment made in defiance of the prohibitory order obtained by the appellant and still in force, could affect the appellant in no way; and, if it had been further objected that the formal order of the District Munsif made on 2nd March, 1921, recording satisfaction of the decree stood in the appellant's wayan objection which personally I see very little forceit would obviously have been within the District Munsif's power under Section 151, Civil Procedure Code, to cancel that order. In my view the proper course for the appellant in July, 1921, was to attach the decree in O.S. No. 772 of 1920 under Rule 53 of Order 21 and proceed to execute it against Ramalinga Chatti, who could have raised no effective bar to his, doing so. Section 64, Civil Procedure Code, would not perhaps have been applicable, as the appellant would not have been enforcing his decree under his original attachment before judgment but under his attachment of the decree itself. But, as the satisfaction of the decree by Ramalinga Chetti could not have been pleaded successfully against the appellant, the load to the execution of the decree by the ordinary procedure of attaching it would have been open to him.

19. It has been contended before us that it was unnecessary for the appellant to attach Lakshmanan Chetti's decree on the debt in O.S. No. 772 of 1920 because on the making of that decree the appellant's original attachment of the debt in some way developed into an attachment of the decree. With respect. I am unable to accept the contention. Attachments in execution or before judgment are in their nature merely means of getting the property concerned into the control of the Court and of restraining the party against whom they are directed from transferring, delivering, changing or destroying the property. By special provisions in Rule 53 of Order 21 an attachment in execution of any of certain special classes of decreesnot all decreescarries with it a special privilege, namely, the right to execute the decree attached. This is a peculiar privilege, in itself quite foreign to the idea of attachment and given only by special provisions. Unless those special provisions are complied with, I do not understand how that special privilege can be acquired. ' In the present case what the appellant got when the debt was attached at his instance was an order prohibiting Lakshmanan Chetti from recovering it and Ramalinga Chetti from paying it. He acquired by that order no right to sue on the debt or to collect it or to give a valid discharge of it. How can the prohibitory order which he obtained grow or ripen into or be converted into something quite different, namely, the right to execute a decree obtained on the debt? It appears to me that that is impossible without some provision of law to that effect. The special privilege of executing Lakshmanan Chetti's decree, it is something quite different in nature and effect from the prohibitory order, was, in my view, open to the appellant only if he took, as he could have taken, the special step necessary for obtaining that privilege, namely, the attachment of the decree. Incidentally I may point out as a minor difficulty in the theory that the attachment of the debt automatically develops into the attachment of any decree in that debt, that the decree in most cases include an amount for costs to which the attachment of the debt itself cannot apply. In the present case the costs awarded to Lakshmanan Chetti by the decree in O.S. No. 772 of 1920 were considerable.

20. I do not think it necessary to consider in this case the question whether the appellant should be regarded as '' claiming under' Lakshmanan Chetti in any sense within the meaning of Section 146, Civil Procedure Code. As the case appears to me, the appellant might have proceeded under the definite provisions of Rule 53 of Order 21, and it therefore is unnecessary and indeed impossiblefor him to call in aid for his present purpose the provisions of Section 146. Similarly the appellant is, in my view, mistaken in attempting to represent that he is in any sense; a transferee of Lakshmanan Chetti's decree under Rule 16 of Order 21 instead of claiming his right to attach that decree and then execute it. If I may say so, the appellant in attempting to make use of Section 146 and Rule 16 of Order 21 in this case appears to be taking a very circuitous route to get round an obstacle which does not really lie in his path or which at the worst would crumble at a touch, namely, the District Munsif's order recording satisfaction.

21. I do not think that the appellant's petition under appeal should have been dismissed. The proper course would have been to allow him to amend it by adding a prayer for the attachment of the decree in O.S. No. 772 of 1920. I agree that the present appeal should be allowed with costs, that the dismissal of the appellant's execution petition should be set aside and that the petition should be remanded to the District Munsif for fresh disposal; but I would add a direction that the District Munsif should allow the appellant to add a prayer for the attachment of Lakshmanan Chetti's decree in O.S. No. 772 of 1920.


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