1. The petitioners in these civil revision petitions, one of whom has also bled an appeal, hold decrees against the defendants in Original Suit No. 34 of 1911, persons who in one way or other are interested in the estate of one T. Krishnier. During the pendency of Original Suit No. 34 of 1911, the plaintiff, here respondent, obtained the appointment of a Receiver of the properties comprised in that estate, who has paid certain profits into Court. Petitioners have attached those profits and have asked for cheques for the amount of their claims from the fund under attachment. The lower Court in the orders before us refused to issue cheques, on the ground that petitioners could not have recourse to this fund until the sale of the property which has been ordered in the decree in Original Suit No. 34 of 1911, one on a mortgage, has taken place, and it has been ascertained whether the fund will be required to make good any deficiency in the amount of that decree. It is argued before us that, apart from the merits of the lower Court's order, no appeal lies against it and that we should not interfere in revision, because the petitioners have another remedy by suit.
2. It is not alleged that any appeal is provided against an order of this description in Order XLIII of the Code of Civil Procedure, the suggestion is only that the order is one passed under Section 47 of the Civil Procedure Code, because petitioners are representatives of the judgment-debtor. This is supported by reference to Rule 179 of the Madras Civil Rules of Practice, which no doubt has the force of law and in which the Court is directed to 'proceed as if the attaching decree-holder was the assignee of the judgment-debtor to the extent of the amount due to the former'. But this merely makes provision for the method by which the attaching creditor is to obtain the benefit of his attachment. It invests him with no new legal character and does not expressly or impliedly justify the application of Section 47 of the Civil Procedure Code to the determination of his rights. On general principles, moreover, it is clear that no such application can be justified.
3. For as the rateable distribution procedure indicates, attachment no more creates or transfers a right of ownership in a fund in Court than in any other description of property. The lower Court's order, therefore, is not appealable as passed under Section 47 of the Civil Procedure Code. As regards the revision, there is no doubt no explicit provision in the Code and so far as we have been shown, no authority for petitioners' right to sue. But their right is not negatived by that fact, and we have not been shown that a future suit by them will be barred by the decisions in the present proceedings. The reason why it will not be is, not that the lower Court postponed adjudication on their right and gave no final decision on it, but that, as the dispute was not covered by Section 47 of the Civil Procedure Code, it was not entitled to adjudicate on it at all except in a properly constituted suit. It may not be safe to hold generally that where the remedy by suit is open, interference by way of revision is unjustifiable; but the fact that petitioners can sue, affords good ground for refusal to interfere in revision in this case, since it is not shown how they will be unfairly prejudiced by being made to take that course. Some suggestion has been made that a refusal by the lower Court to exercise jurisdiction under Section 115 (b), not a material irregularity or an illegality under Section 115 (c) of the Civil Procedure Code, is in question. But the lower Court's order is based on a consideration of the merits of the case and was an exercise, though possibly a wrong one, of the jurisdiction which it assumed that it had. In these circumstances cause has not been shown for interference by way of revision.
4. The appeal against order and the Civil Revision Petitions are, therefore, dismissed with costs which will, however, be allowed only in the latter.
Sadasiva Aiyar, J.
5. The legal questions to be decided have arisen out of facts and considerations which may (for the purposes of this decision) be stated with sufficient accuracy as follows: The decree-holder (B) in one suit (which may be called the first suit) attached moneys of his judgment-debtor (A), which were deposited in Court to the credit of another suit (which may be called the second suit) and which suit was filed by C against the same debtor (A) for sale of mortgaged properties and for the recovery of the balance, if any, after such sale from A personally. The attaching creditor B then made an application in the second suit under Rule 179 of the Madras Civil Rules of Practice. The prayer of an application under Rule 179 ought to be only that a sufficient part' of the attached money should be transferred to the credit of the first suit. B, however, seems to have prayed in his said application for the issue of a cheque for a sufficient part of the attached money. I think the Court ought to have asked B to amend his petition by praying only for such transfer of moneys to the credit of the first suit from the second suit. It was only after the Court passed such an order of transfer in the second suit that B should have put in his application for cheque in his own first suit under Rule 137 of the Madras Civil Rules of Practice for the amount so transferred; I shall, however, treat B's application under Rule 179 of the Madras Civil Rules of Practice for a cheque in the second suit as consisting of two applications, one in the second suit for the transfer of sufficient money to the first suit and another application in the first suit for cheque for the money so transferred. Now the second application for cheque was clearly premature and ought to be dismissed. As regards the first application, the mortgagee decree-holder C was properly treated therein as a counter-petitioner. He objected to the transfer of a sufficient portion to the credit of the first suit, on the ground that he had a first charge on the whole amount for any sum which might in the future be ascertained as the balance due to him by A after the sale of the mortgaged properties and that till that sum was so ascertained in the future, no portion Of the money could be transferred to the credit of the first suit or be paid out to B. This objection of C was allowed and B's application under Rule 179 of the Madras Civil Rules of Practice was dismissed as premature.
6. I think that C's objection to B's application in the second suit under Rule 179 of the Madras Civil Rules of Practice was in substance a petition under Order XXI, Rule 58, of the Civil Procedure Code, advancing a claim to the moneys attached by B and that such a petition must be treated as made in the first suit of B. It follows that the order of the Subordinate Judge allowing C's objection is an order on C's claim petition and was passed in the first suit, That order is final, subject to the result of any suit brought by B under Order XXI, Rule 63, of the Civil Procedure Code, within one year of that order. It is that remedy by suit which B ought to have pursued, and he had no right of appeal or revision to this Court against the Subordinate Judge's order, whether it was passed under Rule 179 of the Madras Civil Rules of Practice (in the second suit), whether it was passed under Rule 137 of the Madras Civil Rules of Practice (in the first suit) or whether it was passed under Order XXI, Rule 60 (in the first suit). Having regard to the complications which are likely to arise (as shown above) in similar cases, I would suggest that Rule 179 of the Madras Civil Rules of Practice should be supplemented by rules providing that where an objection to an application under Rule 179 of the Civil Rules of Practice be made, it should be treated as a claim petition in the suit of the applicant and an order should be passed thereon and that after the passing of such an order, the application under Rule 179 should be disposed of in accordance with such an order. Forms for applications under Rule 179 might also be prescribed. I am also not sure whether the limit of six months mentioned in Rule 179 should not be removed. I agree in the result that the appeal and the Civil Revision Petitions should be dismissed and the latter with costs.