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Viswanathan Vs. Muthuswamy Gounder and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberC.R.P. No. 331 of 1974
Judge
Reported inAIR1978Mad221
ActsCode of Civil Procedure (CPC) , 1908 - Sections 114 - Order 21, Rule 52
AppellantViswanathan
RespondentMuthuswamy Gounder and ors.
Appellant AdvocateA.S. Venkatachalamurthi, Adv.
Respondent AdvocateA. Venkatasubbamma, Adv.
DispositionRevision allowed
Cases ReferredIn Mulraj v. Murti Raghunathji
Excerpt:
- .....file, ordered the attachment of the entire amount in court deposit. thereafter the office of the learned district munsif put up a note which reads as follows-'in this case a cheque for rs. 3,198.05 was ordered to be issued in favour of k. nandagopal, advocate for the decree-holder in o. s. no. 579 of 1970 on 20-11-1973, out of rs. 4,785.15 in court deposit. the entire surplus sale proceeds of rupees 4,785.15 was ordered to be attached by pro-order in e. p. no. 298 of 1973 in o. s. 20 of 1970 on the file of the sub-court, erode, and the pro-order to that effect was received by this court on 20-11-1973 by 3.45 p.m. under these circumstances the cheque ordered to be issued for rs. 3,198 in e. a. 2307 of 1973 in favour of k. nandagopal advocate for decree-holder in o. s. 579 of 1970 may be.....
Judgment:
ORDER

1. This is a revision petition against the order of the learned Principal District Munsif, Gobichettipalayam, made in E. A. No. 2307 of 1973 in E. P. R. 1945 of 1972 in O. S. No. 1528 of 1969 cancelling the order to issue cheque in favour of the revision petitioner.

2. Viswanathan, the revision petitioner herein, obtained a decree against Sel-lammal and her minor children in O. S. No. 579 of 1970 on the file of the District Munsif Court, Gobichettipalayam, on the foot of a promissory note. The properties of the second respondent, viz. Sellammal, were brought to sale by another decree-holder in O. S. No. 1528 of 1969, in pursuance of a money decree. The properties were sold in court auction and after the decree-holder in the said O. S. No. 1528 of 1869 realised the amounts due to him, a sum of Rupees 4,785.16 was available as surplus sale proceeds to the credit of the judgment-debtors in the District Munsif Court Gobichettipalayam. A sum of Rs. 3,500 out of this was attached by the revision petitioner in execution of the decree in O. S. 579 of 1970. The attachment was made absolute on 14-11-1973. He applied for the issue of a cheque for Rs. 3,198.05 being the amount to which he is entitled under the decree in his favour. On 20-11-1973, the learned Principal District Munsif, Gobichettipalayam, ordered the issue of a cheque for Rs. 3,198.05 in favour of Thiru K. Nandagopal, advocate for the revision petitioner (decree-holder in O. S. 579 of 1970). Subsequently, at about 3-45 p.m. on the same date, an attachment by pro-order was received in the court of the District Munsif, Gobichettipalayam, from the Sub-Court, Erode. The Sub-Court, Erode, by its pro-order in E. P. 298 of 1973 in O. S. 20 of 1970 on its file, ordered the attachment of the entire amount in court deposit. Thereafter the office of the learned District Munsif put up a note which reads as follows-

'In this case a cheque for Rs. 3,198.05 was ordered to be issued in favour of K. Nandagopal, advocate for the decree-holder in O. S. No. 579 of 1970 on 20-11-1973, out of Rs. 4,785.15 in court deposit. The entire surplus sale proceeds of Rupees 4,785.15 was ordered to be attached by pro-order in E. P. No. 298 of 1973 in O. S. 20 of 1970 on the file of the Sub-Court, Erode, and the pro-order to that effect was received by this court on 20-11-1973 by 3.45 p.m. Under these circumstances the cheque ordered to be issued for Rs. 3,198 in E. A. 2307 of 1973 in favour of K. Nandagopal advocate for decree-holder in O. S. 579 of 1970 may be ordered to be cancelled and the Full satisfaction recorded on the Memo in O. S. 579 of 1970 may also be cancelled.' Thereupon the learned District Munsif cancelled the order for the issue of a cheque for Rs. 3,198.08 in favour ofMr. K. Nandagopal, which he had passed earlier in the day.

3. The learned counsel for the revision petitioner contends that the order passed by the learned District Munsif subsequently is an order reviewing his earlier order and that he has no jurisdiction to pass suo motu an order reviewing an earlier order. This contention of the learned counsel for the revision petitioner finds support in a decision of the Bench of the Bombay High Court in Danomal v. Union of India, : AIR1967Bom355 wherein it has been observed that (at p. 360)-

'The power to review a prior order is principally the power vested in an officer to review an order previously made by himself and not by anybody else. It is to be noticed that the powers to review an order conferred on these officers under he said rule are only coextensive with the powers vested in the civil court under the C. P. Code when trying a suit. The rule was made in the year 1954. Section 114 C.P.C. confers a power on a person considering himself aggrieved to apply for a review of the judgment to the court which passed the decree or made the order and the said court on reviewing such an application is empowered to make such order thereon as it thinks fit. It is abundantly clear that the power to review, whatever be its limits, arises only when an application by a person aggrieved in that respect, has been made. The Civil Procedure Code does not confer on courts any general power of reviewing its decision suo motu.'

With great respect, I am in entire agreement with the principles laid down by the Bench of the Bombay High Court. A mere reading of Section 114 C.P.C. would suffice to show that the powers of the court can be invoked only by a person considering himself aggrieved by a decree or order from which an appeal is allowed by the Civil P. C., but from which no appeal has been preferred or by a person considering himself aggrieved by a decree or order from which no appeal is allowed by the Civil P. C. The learned District Munsif had, therefore, no jurisdiction to review his own order suo motu.

4. It is further contended that once an order of payment out has been made, the money was not available to the credit of the judgment-debtor and that, therefore, the amount which was order-ed to be paid out could not be attached. In Chokkammal v. Sambandam, AIR 1952 Mad 540 : ILR (1952) Mad 1019, Krishnaswami Nayudu J. following an earlier decision of Kumaraswami Sastri J. in C. S. No. 774 of 1023, has held that once an order for payment out has been made, it must be 'treated that payment out has been actually made', and that whatever amount was ordered to be paid out belongs to the person in whose favour the payment out was ordered and that amount cannot be made available to the claim of third parties. The learned Judge has held that-

'There can therefore be no valid attachment of these moneys subsequent to the order for payment out. On the passing of the order which is the judicial act, the property is transferred to the person in whose favour the order is made and the issue of a cheque, or payment of the money is a ministerial act, and any delay in the performance of which could not prejudice the right to the person who has obtained the order for payment out.'

With great respect, I agree with the principles enunciated in the aforesaid decision of Krishnaswami Nayudu J.

5. However, the learned counsel for the respondents urges that the order of attachment takes effect from the moment it was passed and that the order of the learned District Munsif for payment out passed after the order of attachment was passed by the Sub-Court, Erode, is not a valid order. I am unable to agree with this contention. An order of attachment takes effect from the moment it is brought to the notice of the garnishee and not from the moment it is passed. In Mulraj v. Murti Raghunathji, : [1967]3SCR84 , the Supreme Court considered the question as to when a stay order takes effect, and held that in the case of a stay order as opposed to an order of injunction, the court to which the stay order is addressed does not lose jurisdiction to deal with execution unless it had knowledge of stay. By parity of reasoning, it has to be held that an order of attachment takes effect only from the moment it is brought to the notice of garnishee. As the order of attachment passed by the Sub-Court, Erode, came to the knowledge of the learned Principal District Munsif, Gobichettipalayam, only after he passed the order for payment out, the attachment has taken effect only after the order for payment out was made, in these circum-stances, the learned District Munsif erred in setting aside the earlier order passed by him.

6. The revision petition is, therefore, allowed, and the order of the learned District Munsif cancelling the order for payment out by the issue of a cheque is set aside and the earlier order is restored. There will be no order as to costs.

7. Revision allowed.


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