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M. Palaniappa Pillai Vs. M.M. Pambana Gounder and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberCivil Revn. Petn. No. 2015 of 1973
Judge
Reported inAIR1975Mad245
ActsCode of Civil Procedure (CPC), 1908 - Sections 63 - Order 21, Rule 52
AppellantM. Palaniappa Pillai
RespondentM.M. Pambana Gounder and ors.
Appellant AdvocateSivamani, Adv.
Respondent AdvocateGandhi, Adv.
DispositionPetition allowed
Excerpt:
- .....it can send for the amount of rs. 3,984-80. which is in the custodv of the court of the district munsif, erode.to the credit of o. s. 111 of 1969 the first respondent herein, as decreeholder in o s. 261 of 1969 on the file of the court below (the court of the subordi-nate judge, erode), filed an execution petition, got the abovesaid amount at tached and then filed e. a. 421 of 1972 for sending for that amount. this annlica-tion was opposed by two other decree holders against the same judgment-deb-tors. the judgment-debtors were array-ed as respondents 1 to 4 before the court below and the two other decreeholders were arrayed as respondents 5 and 6 respectively in the abovesaid applicatior viz., e. a. no. 421 of 1972. the other two decreeholders have obtained decrees in the court of the.....
Judgment:
ORDER

N.S. Ramaswami, J.

1. The sixth respondent before the Court below is the revision petitioner before me. The only point that arose for determination by the Court below is whether it can send for the amount of Rs. 3,984-80. which is in the custodv of the Court of the District Munsif, Erode.to the credit of O. S. 111 of 1969 The first respondent herein, as decreeholder in O S. 261 of 1969 on the file of the Court below (the Court of the Subordi-nate Judge, Erode), filed an execution petition, got the abovesaid amount at tached and then filed E. A. 421 of 1972 for sending for that amount. This annlica-tion was opposed by two other decree holders against the same judgment-deb-tors. The judgment-debtors were array-ed as respondents 1 to 4 before the Court below and the two other decreeholders were arrayed as respondents 5 and 6 respectively in the abovesaid applicatior viz., E. A. No. 421 of 1972. The other two decreeholders have obtained decrees in the Court of the District Munsif, Erode against the same judgment-debtors and they had also attached the abovesaid amount viz.. Rs. 3,984-80. which is in the custody of the Court of the District Munsif. The Court below (the learned Subordinate Judge, Erode) thinking that Section 63, Civil P. C. is attracted to the facts of this case, has ordered the application for sending for the amount.

2. The learned Subordinate Judge has not realised that that section applies only when the property attached is not in the custody of a Court. Only in cases where the property attached is not in the custody of Court, the question of the Court of higher grade having precedence over a Court of the lower grade in determining any claim regarding the property so attached would arise. But, here, we are concerned with money that is in the custody of a Court. The relevant orovi-sion, that has to be looked into is Order 21.Rule 52, Civil P.C. The main part of the said rule, no doubt, says that the custody Court should hold the cropertv subject to the further orders of the attaching Court. But. there is the proviso (Proviso No. 1) which is in the following terms :

'Provided that where such property is in the custody of a Court, any question of title or priority arising between the decreeholder and any other person not being the judgment-debtor, claiming to be interested in such property by virtue of any assignment, attachment or otherwise, shall be determined by such Court.'

The first respondent before me (the petitioner in E. A. 421 of 1972) is the decree-holder referred to in the abovesaid oro-viso. Respondents 5 and 6 before the Court below are persons claiming to be interested in the amount now in the custodv of the District Munsif. Erode. The question of priority among these three rival claimants is to be determined, undoubtedly, only by the custodv Court, for the abovesaid proviso savs that the aues-tion of Priority or title has to be determined only by the Court which has cus-tody of the property attached. The learned Subordinate Judge has misdirect-ed himself in thinkine that Section 63. Civil P. C. is attracted to the facts of this case and ordered sending for the amount on the ground that his Court is of superior grade than the Court which has custody of the money.

3. The question of rateable distribution does not arise at all at present. It is not necessary to consider. in the present civil revision petition, whether the conditions prescribed under Section 73. Civil P. C. are available in this cage and if so, whether the three claimants are entitled to rateable distribution. The only point, as I said, is whether the learned Subordinate Judge, Erode, has juris-diction to send for the amount which is now in the custody of the Court of the District Munsif. Erode, at this stage. Though the District Munsif has to hold the amount subject to the further orders of the attaching Court, in this case, the learned Subordinate Judee of Erode. proviso No. 1 to Rule 52 of Order 21 would apply and it is the District Munsif. Erode, who has to decide the question of priority amongst the three rival claimants. Only after the District Munsif so decides the priority and in case the first respondent herein is entitled to priority, the Court below can order (and) send for the amount and not otherwise. Under such circumstances, on the execution application filed by the first respondent herein, the proper order that the lower Court ought to pass is giving a direction to the Court of the District Munsif. Erode, to determine the question of priority claimed by the three rival claimants. Accordingly, the civil revision petition is allowed and the matter is remitted back to the Court below for giving suitable directions in the light of the observations above. There would be no order as to costs.


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