1. These appeals under the Letters Patent raise a question of limitation. The final decree in the suit for partition was made on 25-2-1957 and it was amended by a further order dated 25-7-1958. Under Clause (3) of the final decree, the appellants were entitled to a moiety of the sale proceeds of plaint schedule items 5 and 6 which were in deposit in court They were similarly declared by the final decree to be entitled to a moiety of the sale proceeds of item 8 covered by Clause (4) of the final decree. This amount was also in court deposit. In October 1963, the appellants took out an execution petition for payment out of a sum of Rs. 4639-6-0 out of the moneys lying in deposit. This sum had been decreed in favour of the plaintiffs and against the first defendant towards mesne profits from January 1943 to November 1951. The question was whether this application was in time. The executing court decided the question in favour of the appellants, but, Ismail, J., on appeal, reversed the order and found that the application was out of tune. This was upon the view that the appellants' earlier application, I.A. 426 of 1960, which was ordered on 14-11-1962, was not a step-in-aid of execution. The appeal is from the order of the learned Judge.
2. We are of the same view as Ismail J. The final decree itself specifically stated that the appellants were entitled to a moiety of the proceeds of sale of plaint schedule items 5, 6 and 8. The proceeds being a deposit in court, and, half of the same having been declared to be the share of the appellants, all that was necessary for them was to apply for payment out of the same. It seems to us that no process of execution was required for that purpose. Whether an application for payment out of money in deposit in court can be regarded as an execution petition and a step-in-aid will depend upon the particular circumstances. Where the money in deposit was not realised in execution, but came into court deposit on conversion of the property, which sought to be divided, and the decree as finally made declared one of the parties to be entitled to that amount or a part of it, the process of execution is hardly called or is necessary, and, in that view, we think that an application for payment out would not be regarded as an execution petition and therefore a step-in-aid.
3. Thangi Shettithi v. Duiu Shetti, 1919 35 MLJ 575 : AIR 1919 Mad 929 related to payment out, on application filed by a decree-holder, of money which had been deposited as a condition for setting aside an ex parte decree. It was held that as an order of the court was necessary to make the sum of Rs. 500 available for payment towards the decree amount the application was one in execution of the decree itself and gave the plaintiff a fresh starting point under Article 182(5) of the Limitation Act. It may be seen that the money in deposit in that case did not belong to the plaintiff decree-holder and he could only reach it in execution. In the instant case, the final decree declared, as we said, that the appellants were entitled to a moiety of the sale proceeds in deposit in court. The test, as it seems to us, is not whether the order of Court is required before the decree-holder would get the money In deposit but whether the money hi court deposit or any part of it belongs to the decree-holder. In our view the money in deposit in court to which a decree-holder is entitled is not to be equated to property which the decree-holder is entitled to recover especially when it is not in custodia legis.
4. In Sankara v. Sundara, ILR (1943) Mad 322 : AIR 1943 Mad 129 , it was noticed that a long line of cases had taken the view that an application by a decree-holder for the payment to him of money lying in court and obtained in execution of the decree was a step-in-aid of execution. This principle was extended by the Full Bench in that case to an application by a decree-holder for delivery of possession of the immoveable property purchased by him in a sale in execution of a decree as a step-in-aid of execution of the decree. In our view the ratio of this decision is inapplicable to an application for payment out of a moiety of the sale proceeds of a property In court deposit which has been declared to belong to the share of the decree-holder applicant for payment out, A learned single Judge of this court in Kannappa Chettiar v. Manickam Chettiar : AIR1957Mad665 , in the course of the judgment would appear to be inclined to the view that even in such a case, the application should be regarded as in execution and a step-in-aid. But, the decision in that case really turned on the fact that the application for payment out also related to sums in deposit to which the applicant was, by declaration of the court, not entitled, but, which he could reach only by execution.
5. On that view of the matter the appeals are dismissed with costs.