1. This appeal is against the order of the Subordinate Judge of Dindigul in the following circumstances
2. The appellant had in execution of a decree attached certain moveables belonging to his judgment-debtor (2nd defend-ant) in his suit O.S. No. 960 of 1920. The 2nd defendant in order to recover the moveables deposited in the executing Court Rs. 80 on 22nd November, 1921, and again Rs. 120 three days later, and the money remained in Court to the credit of the appellant's suit. An application by the judgment-debtor that the decree was otherwise satisfied was pending. This application ended in favour of the judgment-debtor on 26th January, 1922. The appellant appealed against that order but failed to obtain a stay of further proceedings pending the decision of the appeal. On nth November, 1922, the appeal ended in appellant's favour and the application was remanded for further enquiry as to whether the decree was really satisfied.
3. The respondent holds a decree against the 2nd defendant in O S. No. 272 of 1922. On 13th February, 1922, he obtained an attachment before judgment of the moneys of the 2nd defendant which were in Court to the credit of the appellant's suit. The respondent got his decree on 15th March, 1922. On 12th June, 1922, he applied by an execution application in the appellant's suit to the executing Court to pay out these moneys to him in execution of his decree. This was opposed by the appellant; and the execution Court dismissed the application. The respondent appealed and succeeded in the Lower Appellate Court and appellant has now come up here.
4. The appellant has raised two preliminary points of jurisdiction. One is that no appeal lay to the Lower Appellate Court at all, as the order of the executing Court does not come under Section 47. The other point is that the respondent had no locus standi to apply at all, as he has not put in any execution petition in his own suit. The third question for decision is on the merits, viz., whether the decision of the executing Court that the appellant's decree was fully satisfied availed to put the money standing to the credit of the appellant's suit at the disposal of the respondent for the satisfaction of his decree.
5. As to the first point, it seems to me valid, although it has been taken only for the first time in this Court. It is obvious that the contest is not between a decree-holder and his judgment-debtor but between rival decree-holders. It is argued that the respondent must be taken to be the representative of the judgment-debtor for the purposes of this sum at issue; but I cannot see how that can be. As noted above the respondent has not put in any execution petition nor did he even make the judgment-debtor a party to his execution application in the appellant's suit. He could not in any circumstances claim to be representing the judgment-debtor's interests in this matter unless the judgment-debtor admits that he is still the judgment-debtor of the respondent, i. e., that the respondent's decree is not satisfied. But, of that 1 know nothing, since the respondent has not chosen to make the judgment-debtor a-party. Obviously if the judgment-debtor has otherwise satisfied the respondent's decree, then the respondent's claim is adverse to the judgment-debtor's claim and the respondent cannot be his representative. It is impossible therefore 01: the materials before me to hold that the respondent is in any sense the representative of the judgment-debtor. The matter clearly is not one relating to the execution, discharge or satisfaction of the appellant's decree as between himself and his judgment-debtor, and the respondent is in no sense bound by the appellant's decree. The finding of the executing Court is that the money was the money of the judgment-debtor. The order that, as between appellant and respondent, money should be paid out to the respondent does not appear to me in any sense to be an order under Section 47
6. The case in Kuppuswami Aiyar v. Kuppuswami Aiyar(1918) 9 L W 32 relied on by the respondent does not help, because the decision in that case depended on the wording of O.21, Rule 53(3) which declares that an attaching decree-holder shall be the representative of the holder of the attached decree. The present case is not a case of an attaching decree-holder at all. A decision more to the point, though not exactly on it, is Varada Ramaswami v. Vumma Venkatratanam : AIR1922Mad99 where it was held that a contest between rival decree-holders for rateable distribution does not come under Section 47. It appears to me therefore that no appeal lay to the Subordinate Judge and that his order is without jurisdiction and void.
7. As to the second point it is difficult to see how the application was maintainable at all. The respondent had not applied for execution of his decree and no execution petition by him was pending. He had no locus standi in the appellant's suit, and no right to put in any execution application in that suit. His proper course was to have put in an execution petition in his own suit, asking for the transfer to his suit of the amount at the credit of the appellant's suit, and then for the payment of this amount to him. In Nachiappa Chettiar v. Subbier 44 M L J 413 (F B) this Court has discussed generally the proper procedure in cases of several attachments before judgment which is necessary to make the judgment-debtor's money lying in Court available for payment out to successful decree-holders. Apart from this, it was essential that the respondent should have given notice to the judgment-debtor. It is not a case where notice could be dispensed with, because execution was being taken out within one year of the decree because as pointed out, the respondent did not take out any execution petition at all. He was evidently endeavouring to get hold of the money without the knowledge of the judgment-debtor.
8. As to the third point, it is not necessary to go into it fully. The decision on it rests on the manner in which 1 interpret the nature of the 'security,' for which purpose the money was deposited into the executing Court. I think it was clearly security for the satisfaction of the appellant's decree. If the judgment-debtor's petition to record satisfaction had failed before the District Munsif, there can be no doubt that the appellant would have the first claim on the money deposited as security for his decree. [See Ramiah Aiyar v. Gopaher 35 M L J 355]. But, as it happened, the District Munsif held that the decree for which the money was security had been satisfied otherwise, and the respondent's contention is that this order had the effect of destroying for ever any lien the appellant had on the money. Whether, if the respondent's application for the money had been in proper form and had been disposed of by the executing Court after it had declared that the appellant's decree was fully satisfied and before the Lower Appellate Court reversed that order, the executing Court would have been justified in paying out the money to the respondent need not be decided here. But 1 should be inclined to hold, if necessary, that when the Lower Appellate Court reversed the order of the executing Court, and the security money was still in the custody of the executing Court, that money resumed again the character which it had when it was paid in, viz., security for the satisfaction of the appellant's decree, and that it bore that character when the respondent's application for payment to him was disposed of by the executing Court; that is, that on 3rd March, 1923 when that order was passed the security had again resumed its original character and was at the credit of the appellant's suit for the satisfaction of his decree. As a matter of fact, after the remand the executing Court held on 14th April, 1923 that the appellant's decree was not-satisfied and that order has not been appealed against and is final. However, in view of my findings on the preliminary point raised it is unnecessary to go further into this question.
9. I must therefore hold that the order of the Lower Appellate Court was without jurisdiction. I reverse it and restore the order of the District Munsif with costs here and in the Lower Appellate Court.