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Thanmull Sowcar and anr. Vs. K. Krishnaswami Reddiar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1935Mad988
AppellantThanmull Sowcar and anr.
RespondentK. Krishnaswami Reddiar
Cases ReferredMadden v. Chappani
Excerpt:
- madhavan nair, j.1. the defendant is the appellant. the second appeal arises out of a suit instituted by the plaintiff tinder section 73(2), civil p.c. section 73(1), civil p.c., relates to rateable distribution among decree-holders. section 73(2) says:where all or any of the assets liable to be rateably distributed under this section are paid to a person not entitled to receive the same, any person so entitled may sue such person to compel him to refund the assets.2. the facts of the case are not seriously disputed. the plaintiff (respondent) is the assignee-decree-holder in o.s. no. 64 of 1917 on the file of the sub-court of chingleput and he has by the assignment become the holder of a personal decree against the judgment-debtor, one narayanaswami reddiar. in execution of the decree he.....
Judgment:

Madhavan Nair, J.

1. The defendant is the appellant. The second appeal arises out of a suit instituted by the plaintiff tinder Section 73(2), Civil P.C. Section 73(1), Civil P.C., relates to rateable distribution among decree-holders. Section 73(2) says:

Where all or any of the assets liable to be rateably distributed under this section are paid to a person not entitled to receive the same, any person so entitled may sue such person to compel him to refund the assets.

2. The facts of the case are not seriously disputed. The plaintiff (respondent) is the assignee-decree-holder in O.S. No. 64 of 1917 on the file of the Sub-Court of Chingleput and he has by the assignment become the holder of a personal decree against the judgment-debtor, one Narayanaswami Reddiar. In execution of the decree he applied in the Sub-Court for the attachment of Narayanaswami Raddiar's properties on 5th March 1924 and obtained an order of attachment on 10th March 1924. The defendant (appellant) also obtained a money decree in O.S. No. 594 of 1921 against the same Narayanaswami Reddiar on the file of the District Munsif s Court, Chingleput, and he attached the same properties in the Madurantakam District Munsif's Court, and sold them on 12th March 1924 apparently ignorant of the attachment at the instance of the plaintiff in the Sub-Court. The plaintiff applied on 12th March 1924, the day of sale, to the Sub-Court to stop the sale in the Madurantakam Court or to have the sale proceeds transmitted from the District Munsif's Court to the Sub-Court. The Subordinate Judge passed an order calling upon the Munsif'a Court to send the sale proceeds. This order passed on 12th March 1924 was communicated to the Munsif's Court on 13th March 1924. The District Munsif replied that a set off had been allowed in favour of the defendant and that there were no sale proceeds available to be sent to the Sub-Court. It may here be mentioned that there was some discussion at the Bar as to whether an order permitting set off had been in fact passed at the time by the District Munsif. It was assumed in the first Court in the present proceedings that such an order had been passed. But the Subordinate Judge in the course of the appellate judgment has pointed out that no such order had been made. I do not think we need attach any importance to the question whether an order had actually been or not been passed by the District Munsif at the time of the sale, for under Order 21, Rule 72(2), when a decree-holder purchases property with permission of the Court:

The purchase money and the amount due on the decree may, subject to the provisions of Section 73, be set off against one another, and the Court executing the decree shall enter up satisfaction of the decree in whole or in part accordingly.

3. This rule gives a decree-holder purchasing property with the permission of the Court the privilege to set off the purchase money and the amount due under the decree, subject to Section 73, Civil P.C. It is not disputed in this case that permission to bid had been given to the decree-holder and that as a matter of fact, a 'set off' had been made. The second appeal has been heard by me on the assumption that a set off had been validly made. The decree-holder purchaser, that is, the present defendant, made a bid for the properties for Rs. 1,700. His decree was for Rs. 1,800. It appears that after allowing the set off, satisfaction was recorded in favour of the defendant to the extent of Rupees 16,00. To complete the facts, on 15th March 1924, the plaintiff put in a petition to the Munsif's Court requesting it to call upon the defendant to bring back and deposit the sale proceeds, but this was refused on the ground that the sale was held and a set off was allowed before the receipt of the communication from the Sub-Court. He then preferred a civil revision petition against this order of refusal to the High Court and it was dismissed. Subsequently he filed the present suit under Section 73(2), Civil P.C., for Rs. 1,497, being the amount due to him out of the sale proceeds in O.S. No. 504 of 1921, on the file of the District Munsif's Court of Chingleput with interest at 12 per cent per annum from 12th March 1932 up to the date of suit, claiming that he would have got this amount by way of rateable distribution if the sale proceeds had been deposited in Court. Both the lower Courts upheld the claim of the plaintiff. In second appeal it is argued that the plaintiff is not entitled to claim rateable distribution as he had not filed an application to the Madurantakam District Munsif's Court before the receipt of assets and as a set off had been allowed in the appellant's favour and there were no assets left for rateable distribution. This plea is met by the respondent with the reply that he had already applied to the Sub-Court for execution and had obtained an order of attachment on 10th March 1924 before the property was sold on 12th March 1924 by the District Munsif's Court, that he had also applied on 12th March 1924 to the Sub-Court to stop the sale, and that the set off allowed in favour of the appellant cannot improve his position inasmuch as under the Code it is always subject to the provisions of Section 73. The substantial question for determination in this second appeal is whether the plaintiff can claim to be a person entitled to rateable distribution, for it is only such a person that can institute a suit under Section 73(2), Civil P.C. Section 73(1) provides that:

Where assets are held by a Court and more persons than one have, before the receipt of such assets, made application to the Court for the execution of decrees for the payment of money passed against the same judgment-debtor and have not obtained satisfaction thereof, the assets after deducting the costs of realisation shall be rateably distributed among all such persons.

4. In the present case both the plaintiff and the defendant are holders of money decrees against the same judgment-debtor and assets have been realised by the Madurantakam District Munsif's Court; but admittedly the plaintiff had not applied to that Court for the execution of the decree before the receipt of assets, though he had applied to the Sub-Court for execution and attached the suit properties. In applying Section 73, Clause (1), Civil P.C., to the case of the plaintiff, the question to be considered is whether his application to the Sub-Court of Chingleput for execution was sufficient to entitle him to rateable distribution without any application by him to the Madurantakam Court before the receipt of assets. The answer to this question would depend on a construction of Section 63, Civil P.C. Clause (1) of the section runs as follows:

Where property not in the custody of any Court is under attachment in execution of decrees of more Courts than one, the Court which shall receive or realize such property and shall determine any claim thereto and any objection to the attachment thereof shall be the Court of highest grade.

5. Clause (2) says:

Nothing in this section shall be deemed to invalidate any proceeding taken by a Court executing one of such decrees.

6. This section provides that where property has been attached in execution of decrees of more Courts than one, the Court which shall receive or realize the property aid determine claims thereto shall be the Court of highest grade. It is argued by the respondent that Section 63, Civil P.C., lays down a general rule of procedure and that, in a case where the same property is attached by two Courts, one, of a higher and the other of a lower grade, then the receipt of assets by one of such Courts must be deemed to be a constructive receipt of assets by each of the Courts and the decree-holders in each of them are entitled to a rateable distribution of the assets, though the actual custody of the assets is only with one of the Courts; and that for the sake of convenience, the work of distribution is given by the section to the Court of the higher grade. If this section can be said to lay down a general rule, then the next question will be, how far having regard to the facts of this case will the principle be affected by the set off which the appellant had obtained in the District Munsif's Court. No case directly supporting the interpretation of Section 63, Civil P.C., as explained by him has been cited by the learned Counsel for the plaintiff (respondent); but he has cited a few cases, Narasimhachariar v. Krishnamachariar 1914 Mad. 454, Kawai Ton Kee v. Limchawng Ghee 1928 Rang. 157, Deekappu Mallappa v. Chanbasappa Rachappa 1925 Bom. 420 and Rama Raju v. Lakshmiah 1931 Mad. 103, which though distinguishable on facts, may be said to lend considerable support to his contention. On the other hand, the learned Counsel for the appellant has cited one decision of the Bombay High Court, viz., Shidappa v. Gurusangaya, 1931 Bom. 850, which supports him entirely, and which, if followed, would entail the dismissal of the plaintiff's suit. I shall now examine these cases.

7. In Narasimhachariar v. Krishnamachariar 1914 Mad. 454, a debt due to the judgment-debtor by the Public Works Department and attached in execution of several decrees against the judgment-debtor in several Courts was paid into the High Court under Section 63, Civil P.C. The attaching creditors had not made application to the High Court before the receipt of assets by it. It was held that the attaching creditors who attached the money in question before it was paid into the High Court by the Executive Engineer, are entitled to share rateably irrespective of the fact that their decrees have not been transferred to the High Court. In the course of the judgment it was pointed out by Wallis, J., that:

It is only for purposes of convenience that the highest Court is made the collecting Court and the Court to adjudicate on claims and objections and the property received or realized must be deemed to have been received or realised by or on behalf of all the Courts in which there have been attachments in execution of money decrees prior to the actual receipt of assets.

8. Does the decision lay down a general principle that the receipt of assets by one of the Courts contemplated in Section 63 amounts to a constructive receipt of assets on behalf of all the Courts so as to entitle the attaching decree-holders in each of the Courts to rateable distribution in the assets in the actual custody of one of them, it being the function of the Court of the higher grade to adjudicate on the claims and objections, and distribute the assets? This case Narasimhachariar v. Krishnamachariar 1914 Mad. 454 is strongly relied upon by the plaintiff (respondent), but the appellant distinguishes it on the ground that the case before us is a converse one, the sale and realization of assets in our case having taken place in the inferior Court while the custody of the assets was in the superior Court, that is, the High Court, in the case in Narasimhachariar v. Krishnamachariar 1914 Mad. 454, which admittedly according to Section 63, Civil P.C., is the proper Court to determine the claims and distribute the assets. It is also said that the decision is inapplicable, as in the present case, a set-off had been permitted by the District Munsif in favour of the decree-holder. I shall consider these objections presently.

9. In Kawai Ton Kee v. Limchawng Ghee 1928 Rang. 157, another case relied on by the respondent, the creditors of a judgment-debtor in the Small Cause Court of Rangoon attached a sum of money deposited by the judgment-debtor with a club. A High Court creditor of the judgment-debtor also attached the same sum. The money was paid into the High Court. It was held that under the provisions of Section 63, Civil P.C., the High Court alone could determine all claims to the money, and that the decree-holders in the Small Cause Court need not in such a case make an application to the High Court for execution before the receipt of the assets. This decision does not advance the case of the respondent any further, for it is similar to the case in Narasimhachariar v. Krishnamachariar 1914 Mad. 454 Narasimhachariar v. Krishnamachariar 1914 Mad. 454, just discussed, and, like it, is the converse of the present case, and the proceeds were available for distribution, as no set off had been allowed. The same objections urged against the decision in Narasimhachariar v. Krishnamachariar 1914 Mad. 454 have been urged by the appellant against this decision also. It may be mentioned that the learned Judges pointed out in their judgment that Section 73, Civil P.C., must be read in conjunction with Section 63 of the Code.

10. The next case Deekappu Mallappa v. Chanbasappa Rachappa 1925 Bom. 420 comes nearer the point. But that also is distinguishable to a certain extent on the facts. In that case attachment of the judgment-debtor's property had been levied by the superior Court at the instance of a certain creditor. Other creditors had obtained decrees against him in an inferior Court and the properties were sold in execution of the decrees and the sale proceeds were lying in that Court. The creditor who attached the property in the superior Court applied to that Court to direct the inferior Court to send the sale proceeds to that Court. The High Court held that he was entitled to make such an application. The learned Judges stated:

Treating this as an application under our extraordinary jurisdiction we make an order that the sale proceeds along with the darkhast pending in the Hubli Court for rateable distribution should be transferred from the Hubli Court to the Court of the Subordinate Judge of Dharwar, the sale proceeds to be rateably distributed by him amongst the decree-holders who have qualified themselves under Section 78, Civil P.C.

11. It will be observed that this case would be exactly like the present case but for the fact that in the case before us, the decree-holder in the inferior Court was allowed a set off, and thus there were no assets lying in that Court for sending them to the superior Court. Having regard to this decision the argument of the appellant that the principle of the decision in Narasimhachariar v. Krishnamachariar 1914 Mad. 454 should not be applied to a converse case loses its force, as the sale in this case, i.e., Deekappu Mallappa v. Chanbasappa Rachappa 1925 Bom. 420 had taken place in an inferior Court, and no application had been made to it by the decree-holder who attached the property in the superior Court and yet the learned Judges held that he was entitled to have the proceeds sent up to the superior Court for rateable distribution. If this decision is correct, then it would mean that Section 63 embodies a general rule that the receipt of the assets by one Court amounts to a constructive receipt of the assets on behalf of all the Courts who have attached the property of the judgment-debtor, and the only question for consideration would be how far will the special fact of a 'set off' having taken place in the case before us in the inferior Court would exclude the application of the general principle. That such a set off will materially affect the decision of the case having regard to Clause (2), Section 63, Civil P.C., has been held by the Bombay High Court in Shidappa v. Gurusangaya, 1931 Bom. 850, in spite of the provision in the Code in Order 21, Rule 72(2), that the set off is always subject to the provisions of Section 73. This is the decision strongly relied on by the appellant, but before examining it, I shall refer to one more case cited by the respondent in his favour.

12. In that case, Rama Raju v. Lakshmiah 1931 Mad. 103, the sale of the judgment-debtor's properties was effected on 2nd April 1929 by the inferior Court, and prior to the sale, the decree-holder applied under Order 21, Rule 72 for permission to bid in auction and to set off the purchase amount against the decree so far as it goes, and the set off was allowed. Another decree-holder against the same judgment-debtor applied before the Subordinate Judge of Narsapur on 11th April 1929, for transmission of his decree to the District Munsif, Tanuku, the inferior Court. It was despatched on 12th April 1929 and reached the Tanuku Court on the 15th. In anticipation of the arrival of the decree, the decree-holder applied for execution of his decree in the District Munsif's Court of Tanuku, and for rateable distribution, on 12th April. One of the considerations in the case was whether the order that was passed under Order 21, Rule 72, Civil P.C., must be taken to be subject to the provisions of Section 73.

13. The learned Judge (Ramesam, J.) held that in that case, there being no persons having rights under Section 73 on the date of the sale, that is, 2nd April 1929, the set off will take full effect thereby suggesting that, if there were persons entitled to claim rateable distribution under Section 73, then the order for set off will not affect their claims. It will be observed that in that case the application the superior Court was made a few days after the receipt of assets by the inferior Court. In the case before us, the attachment in the Sub-Court was two days before the sale in the District Munsif's Court, and if Section 63 is to be interpreted as laying down a general principle, then the respondent would be a person entitled to rights under Section 73, Civil P.C. That right cannot be taken away by the set off ordered by the District Munsif's Court. This position derivable by way of inference from this judgment will be opposed to the decision in Shidappa v. Gurusangaya, 1931 Bom. 850 with reference to the argument that the order under Order 21, Rule 72, must be taken to be subject to the provisions of Section 73, this is what the learned Judge says:

That is perfectly true. This only means that if there are persons by the time of the sale who would be entitled to some rights under Section 73, that is to claim rateable distribution, the order under Order 21, Rule 72 must be taken subject only to the operation of Section 73 and the decree-holder bidder cannot claim to set-off his decree against the amount of the bid and refuse to pay the amount due to the other decree-holders claiming to be entitled under Section 73. But if there are no such persons entitled to claim rateable distribution under Section 73 either at the time of the sale or within 15 days from the date of the sale, then the order to set-off completely works out as payment on the date of the sale where the amount of the bid is less or equivalent to the amount of the decree...and in such a case there is no effect to be given to the words 'subject to the provisions of Section 73' and decree-holders coming long after cannot claim the benefit of Section 73 by applying to the Court asking the decree-holder to deposit his amount and then describing it as 'receipt of the assets' and praying for rateable distribution out of it.

14. This case is not of direct importance, but it does support inferentially that the respondent in the present case can, by his having attached the property in the Sub-Court before it was sold in the District Munsif's Court, claim the benefit of Section 73, and the set-off allowed will not affect his claim. But of course the learned Judge had not to consider this aspect specifically in that case. I will now refer to the decision in Shidappa v. Gurusangaya, 1931 Bom. 850. In that case, the decree-holder in dharkast No. 282 of 1925 brought the property of the judgment-debtor to sale in the inferior Court. He was given permission to bid and was allowed to set-off the decretal amount against the purchase-money. After effecting the set-off he deposited the excess amount realized by sale in Court. While so, an assignee decree-holder who had attached the same properties earlier in the superior Court, that is, the Subordinate Judge's Court of Bijapur, filed an application to call for the money in the inferior Court for rateable distribution. The Subordinate Judge directed the decree-holder to deposit the entire purchase money in Court on the ground that otherwise the provisions of Section 73 would be rendered nugatory. On appeal it was held that the order of the Subordinate Judge calling upon the decree-holder to refund the decretal amount which was ordered to be set-off against the purchase money was erroneous, and that the decree-holder was bound to deposit only the excess amount of Rs. 2,491 realized in dharkast No. 282 of 1925. It will be observed that the case before us is similar to this case except for the fact that in our case the decree holder in the Madurantakam Court, that is, the inferior Court, did not have to deposit any excess amount, after effecting the set-off. As regards the right of the plaintiff to call upon the defendant to deposit the purchase-money to make it available for distribution amongst the various attaching creditors, the question for decision is the same in both the cases, and the Judges of the Bombay High Court decided it in favour of the appellant. In support of their decision they relied on Clause (2), Section 63 which states that:

Nothing in this section shall be deemed to invalidate any proceeding taken by a Court executing one of such decrees.

15. The learned Judges were pressed with the argument that the permission to set-off the decretal amount against the purchase-money is, subject to the provisions of Section 73, Civil P.C., according to the provisions of Order 21, Rule 72(2), and that on the strength of the provision, a person qualified under Section 73, Civil P.C., to ask for rateable distribution could compel the decree-holder of the inferior Court to deposit the purchase-money, even though permission had been given to him to set-off the decretal amount against that sum. This argument was not accepted. The learned Judges thus dealt with the point:

But in the present case the question arises whether the sale must be accepted as a whole together with the permission given to the decree-holder in darkhast No. 282 of 1925 to set-off the decretal amount against the purchase-money. We think that the auction sale together with the permission given to the decree-holder in darkhast No. 282 of 192S to set-off the decretal amount against the purchase-money is a 'proceeding' within the meaning of Clause (2), Section 63 which lays down that 'nothing in this section shall be deemed to invalidate any proceeding taken by a Court executing one of such decrees.' The word 'proceeding' is wide enough to include not only the sale but also the order allowing the decree-holder to set-off the decretal amount against the purohase-money.

16. The question is whether this view of Clause (2), Section 63 and the interpretation of the word 'proceeding' can be accepted. Sub-section (2) to Section 63, Civil P.C., is new. Before its enactment, there was a conflict between some of the High Courts as to whether a sale of property in execution should be held to be invalid, merely because the property was sold by a Court, which having regard to Section 63(1), had no right to sell it. This conflict was put an end to by enacting Sub-clause (2), according to which a sale held by a Court of a lower grade, in contravention of the provisions of sub-section, though irregular, is not rendered invalid. Having regard to this sub-section, no one can be heard to say that the proceeding in execution ending with the sale in the District Munsif's Court of Madurantakam is invalid. Does the sub-section mean anything more than this, that is, does it mean that by force of it, the set-off permitted in favour of the decree-holder is also valid, though Order 21, Rule 72(2) specifically says that the set-off can be allowed only, subject to the provisions of Section 73.

17. When the right to set-off is specifically made subject to the provisions of Section 73 by the special provision contained in Clause (2), Rule 72, would it have been summarily taken away by the legislature by 1181132 the word 'proceeding' in Clause (2), newly added to Section 63? It is not easy to decide this question. It appears to me that the legislature, if it had intended to nullify the effect of Clause (2), Order 21, Rule 72, would have indicated its intention by using clearer and more definite language. It was not argued before me that the scope of the difference in the various High Courts, which caused the enactment of Clause (2) of Section 63 included questions relating to the validity of set off. Section 73 confers a substantive right upon the various attaching decree-holders who attach the properties of the same judgment-debtor. Section 63(1) makes that right more effective; Order 21, Rule 72(2) subjects the right to set off to Section 73. Is there any need to construe Clause (2), Section 63 in a way which will limit the right to rateable distribution, when the object of the enactment seems to have been only to hold that the proceedings in execution and the sale are not invalid? I think in a case like the present, by refusing to recognize the validity of the set off, Courts will be enabled to adjust the rights of the parties on a more correct footing by giving effect to a fact (attachment) of which the inferior Court was unaware when it passed the order allowing the set off, which order, if it knew, it would not have passed.

18. The view that the sale with the permission to set off would be valid, did not find favour with the learned Judges (Ramesam and Stone, JJ.) in C.R.P. No. 1005 of 1930 heard along with A.S. No. 64 of 1929. In that case, when the sale with a set off was allowed by the Sub-Court, it was ignorant of the existence of another previous attachment in the District Munsif's Court of Madura. The learned Judges pointed out:

If no other execution creditor intervenes, no doubt the sale obtained by the respondent will stand on the terms he has obtained, namely, with the permission to set off; but now there is another execution creditor who comes to the Sub-Court praying for rateable distribution saying that he obtained his attachment so long ago as 29th June, long before the order of 19th December. There is no reason why the error should not be rectified because no actual payments had been made. If that attachment had been known, the order permitting the sale with a permission to set of would not have been made and if made it would be erroneous.

19. Then they distinguish Rama Raju v. Lakshmiah 1931 Mad. 103, already referred to, and Punnamchand Chatraban v. Satyanandam 1938 Mad. 804 by saying that in those cases, there was no application for execution prior to the sale, suggesting, thereby that if there was such an application, the order directing the set off would not be a proper order. Then the learned Judges referred to Narasimhachariar v. Krishnamachariar 1914 Mad. 454, stating that it dealt with the general effect of Sections 63 and 73, Civil P.C. In the end, they pointed out that that decision has been followed in other cases and

though there are one or two differing judgments of other Courts, we do not see any reason to-depart from that decision now.

20. What those differing judgments of other Courts are, are not mentioned in. the judgment; probably one of the judgments they had in mind was Shidappa v. Gurusangaya 1931 Bom. 850 in which Narasimhachariar v. Krishnamachariar 1914 Mad. 454 was referred to and brushed aside as a converse case. It would thus appear that the latest decision of our own Court lends support to the view that in a case-like the present, on account of the previous attachment, the order directing the set off will only be subject to the rights of the person who has already obtained the attachment. Of course it should be remarked that the learned' Judges did not refer to Clause (2), Section 63 in their judgment, but the question which they were discussing was the point regarding the validity of the sale. In their opinion, a sale obtained with permission to set off will be valid if no other execution creditor entitled to rateable distribution intervenes. From the above discussion of the case law, the-following conclusions emerge:

1. Where property is attached by, different Courts and money is realised in accordance with Section 63, Civil P.C., by the Court of the highest grade, the attaching creditors of the Courts of the lower grade are entitled to share ratably irrespective of the fact that their decrees have not been transferred to that Court : see Narasimhachariar v. Krishnamachariar 1914 Mad. 454.

2. Where execution has taken place and money has been realised by an inferior Court, the superior Court which had attached the property at an earlier, date than the date of the sale, is entitled to call for the proceeds lying in Court : see Deekappu Mallappa v. Chanbasappa Rachappa 1925 Bom. 420.

3. Sections 63 and 73, Civil P.C., should be read together, and Section 63 lays down a general rule of procedure as to which Court shall deal with the proceeds realised in execution by one Court where the property has been attached in execution of the decrees of several Courts of different grades. In a case to which Section 63 applies, the receipt of assets by one of the Courts contemplated in that section amounts to a constructive receipt of assets by each of such Courts, and if so, the attaching decree-holders in each of them are entitled to a rateable distribution in the assets in the actual custody of one of them.

4. The right to rateable distribution which an attaching creditor is entitled to in the cases above mentioned, cannot be forfeited, even though when the sale was effected, a set off was allowed in favour of the decree-holder. This conclusion follows, I think, inferentially from the decisions in Rama Raju v. Lakshmiah 1931 Mad. 103 and directly from C.R.P. No. 1005 of 1930 though the decision in Shidappa v. Gurusangaya 1931 Bom. 850 is directly opposed to it.

21. For the above reasons, I hold that the plaintiff (respondent) in the present case is entitled to rateable distribution, though he did not apply to the Madurantakam District Munsif's Court, and the property was purchased by the decree-holder in that Court with a set off in his favour, and that he is therefore entitled to institute the present suit under Section 73(2), Civil P.C. It was next argued that, if the set-off is not recognised, then the defendant should be given the option of re-sale of the property, and reference was made to Madden v. Chappani (1888) 11 Mad. 356 in support of this contention. The point as such was not raised in either of the Courts below and does not find a place even in the grounds of this second appeal. In these circumstances I am not inclined to allow the appellant to raise the point at this late stage. Further it is doubtful to me if the defendant can ask for the exercise of the option except during the course of execution proceedings.

22. The last point argued was that the defendant should not have been asked to pay interest on the sum claimed by the plaintiff. Having regard to the language of Section 73(2) which says only that the plaintiff in the circumstances mentioned therein is entitled to sue the defendant 'to compel him to refund the assets' I am inclined to hold that the plaintiff cannot ask for interest on the assets till the date of the suit. Apart from this consideration, the amount in question having been given to him by an order of the Court, it cannot in my opinion be said that the defendant was in wrongful possession of the same. It is true that he denied the right of the plaintiff to rateable distribution in the present suit. But in the execution proceedings, no one opposed him and the Court allowed the set off in his favour. If the fact of the earlier attachment by the Sub-Court had been known at the time of the sale, none of these difficulties would have arisen; but for this accident the defendant cannot be punished by making him liable to pay interest on the amount claimed. I would therefore disallow interest till the date of the plaint; subsequent to that date, interest will be allowed at the rate of 6 per cent till the date of payment. Except as regards interest, the lower Court's decree is upheld, and the second appeal is dismissed. As regards interest, the lower appellate Court's decree will be amended. In this Court the parties will pay and receive proportionate costs.


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