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Kamakshi Ammal and ors. Vs. Pappathi Alias Kamalambai - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Reported inAIR1976Mad292; (1976)2MLJ60
AppellantKamakshi Ammal and ors.
RespondentPappathi Alias Kamalambai
Cases ReferredBird v. Barstow
Excerpt:
- .....dismissed. in the course of this litigation the first plaintiff died and plaintiffs 2 to 9 are his legal representatives; even so the first defendant died and the second defendant is his legal representative. plaintiffs 2 to 9 were added as the legal representatives of the deceased first plaintiff and the second defendant as the heir of the first defendant was added as his representative and was recognised as a person entitled to the benefits of the cultivating tenart under the tamil nadu cultivating tenants protection act. after the passing of the tamil nadu act xxi of 1972, the second defendant deposited the arrears of rent payable for fasli 1381 and sought for a declaration from the revenue court that the arrears of rent by then payable has been wiped out. she obtained such a.....
Judgment:
ORDER

T. Ramaprasada Rao, J.

1. The petitioners sought for a refund of a sum of Rs. 979.50, which as in court deposit, pursuant to interim orders made by this Court, whilst the respondents equally claim that that amount is payable to them, as the same was deposited by them into Court as per orders of Court and that the petitioners have no right, title or interest therein. The petitioners' predecessor-in-interest was the landlord and the first respondent was his tenant of agricultural lands in the district of Thanjavur. He filed a suit O.S. No. 40 of 1962 on the file of the District Munsiff Court, Tiruvarur, for the recovery of arrears of rent by then payable by the first respondent-first defendant. The trial Court dismissed the suit. The first plaintiff in that suit took up the matter further in appeal to the District Court, Nagapattinam in A.S. No. 76 of 1964 and the same was allowed. The tenant-defendant preferred an appeal to this Court in S.A. No. 1061 of 1966, and sought for stay of execution of the decree. This Court directed the defendant to deposit one half of the decree amount and to give security for the other half. Pursuant to the Said orders, the defendant deposited the said sum. The second appeal was, however, dismissed. In the course of this litigation the first plaintiff died and plaintiffs 2 to 9 are his legal representatives; even so the first defendant died and the second defendant is his legal representative. Plaintiffs 2 to 9 were added as the legal representatives of the deceased first plaintiff and the second defendant as the heir of the first defendant was added as his representative and was recognised as a person entitled to the benefits of the cultivating tenart under the Tamil Nadu Cultivating Tenants Protection Act. After the passing of the Tamil Nadu Act XXI of 1972, the second defendant deposited the arrears of rent payable for fasli 1381 and sought for a declaration from the revenue Court that the arrears of rent by then payable has been wiped out. She obtained such a declaration. After obtaining the same, she (respondent in the C.R.P.) filed E.A. No. 577 of 1973 in O.S. No. 40 of 1962 on the file of the Court of the District Munsif, Tiruvarur, seeking for a refund of the sum of Rs. 979.50 paid by the first defendant (her predecessor-in-interest) as that amount belongs to her and that plaintiffs 2 to 9 have no right, title or interest in it. This was resisted by the legal representatives of the decree holder (petitioner in the C.R.I.). Their case was that they were entitled to the amount in Court deposit in preference to the second defendant as heir of the judgment-debtor. Furthering this aspect plaintiffs. 2 to 9, who are the petitioners herein, filed an independent application under Section 151, Civil Procedure Go<3e read with Rule 163 of the Civil Rules o Practice for payment out of the aforesaid sum. of Rs. 979.50. According to the petitioners the amount deposited in Court has become payable to them and has become their property no sooner the second appeal was dismissed. The respondent (.the heir of the judgment-debtor) cannot take advantage of Act XXI of 1972, and seek for a refund of the aforesaid amount on the foot that the said amount represented outstanding arrears of rent as on the 3Qth June, 1971 within the meaning of Section 3(1) of the said Act. The fact, remains that the petitioners did not withdraw the amount soon after the dismissal of the second appeal and before the induction of Act XXI of 1972 The teamed District Munsif was of the view that the decree obtained by the first plaintiff the original suit was a decree towards rent and that, therefore, such a decree for payment of the rent became unenforceable by reason of Act XXI of 1972. He was also of the view that the decree-holder as a t present by withdrawing the said amount cannot enter part satisfaction of the decree as on date. In the light of the above reasoning he upheld the contention of the cultivating tenant and was of the view that the legal representatives of the first plaintiff were not entitled to the payment of the money in Court deposit. It is as against this, the Present civil revision petitions have been filed by the heirs of the landlord.

2. The contention of Mr. M. Srinivasan learned Counsel for the petitioners, is that the learned District Munsif was wrong in having entered into a discussion about the enforceability or otherwise of the decree and as the amount deposited has become the Property of the decree holder, the respondents cannot claim any interest in it, as the judgment-debtor or the legal representatives of the judgment-debtor. On the other hand, it is said that as long as the decree-holder did not seek for payment out of the amount and as the dismissal of e second appeal cannot have any bearing on the issue, the amount always Belonged to the judgment-debtor it is claimed that the order of the lower Court is correct.

3. In a case like this it is essential to view the subject on a broader perspective as any other approach to it may lead to inequitable results. When the money, was deposited by the judgment-debtor as a condition precedent for the grant of stay at the time when the second appeal was admitted, then such money s0 deposited into Court is in custodia legis and is no longer under the control of either the judgment-debtor or the decree-holder Once the second appeal has been dismissed, the money so deposited and which is in the custody and control of the Court automatically becomes the property of the decree-holder and he has a vested right in him to withdraw the said amount. The mere leaps on his part to take out a Petition for withdrawal of the amount soon after the dismissal of the second appeal will not militate against him nor will it adversely affect his vested right. When once the second appeal has been dismissed, and in consequence the decree for money, though for arrears of rent, has been upheld by this Court, then the money deposited by the judgment-debtor loses its character as arrears of rent. It is simple the country s coin, which the decree-bolder is entitled to as a result of the money decree obtained by him. Such a vested right which enables him to withdraw the amount in court deposit would not make that amount an 'outstanding rent' Payable by the cultivating tenant - judgment-debtor. The relief granted under Section 3 of the Tamil Nadu Cultivating Tenants Arrears of Rent Relief) Act, 1972 (.XXI of 1972), is to the effect that all arrears of rent payable by a cultivating tenant to the landlord and outstanding on the 30th June, 1971 shall be deemed to be discharged, whether or not a decreeor order has been obtained therefore The question is whether that 'portion of the amount which has been deposited by the cultivating tenant into Court in legal proceedings pursuant to the orders of Court as stated above can any longer be impressed with the badge of rent which can be said to be outstanding and payable by the cultivating tenant. A metamorphosis has come in. The cultivating tenant has paid money into court and this money will find its level and way according to the decision in the second appeal and once the second appeal filed by the judgment-debtor has been dismissed there is an automatic vesting of a right to collect that money in Court deposit in the decree-holder and the said amount can no longer be characterised as arrears of rent or rent which was outstanding on the notified date.

4. The above subject has come up. though not under similar circumstances, but in a broader perspective in Courts of law. In Sheo Chalam Sahoo v. Rabut Hussain I.L.R. (1879) Cal. 6, a Division Bench of the Calcutta High Court as early as 1878 took the view that when the money is deposited in Court, the Court holds the deposit in trust for, the decree-holder and the Court is at liberty to pay it over to the decree holder based on his success in the legal proceedings.

5. In Ramaiah Ayyar v. Gopala Iyer : (1918)35MLJ355 the defendant was arrested before judgment and was ordered to be released from custody on depositing into Court a sum of money sufficient to meet the plaintiff's claim in the suit. There was subsequently an attachment of the money by the decree-holder and an adjudication of the aefendantasan insolvent. Courts Trotter, J., as he then was, speaking for the Bench, said that the money paid into the general credit of the action, is charged with a Hen 1X1 favour of the plaintiff obtaining -a decree in his favour and the Official -Assignee cannot claim any preference over the title of the plaintiff over the said property.

6. In Chowthmul v. Calcutta. W and S. Assn. A.I.R. 1925 Cal. 415 similar view was taken by the Division Bench of that Court, Sanderson, C.J., approving of a decision in Bird v. Barstow (1882) 1 Q.B. 94 said that the amount paid into Court under the circumstances similar to the one under consideration was the money of the plaintiff in that suit subject to his succeeding in the appeal. The learned Chief Justice also added quoting Ex parte Banner, In re Keyworth (1874) 9 Ch. Ap. 365 that the money which was paid into Court belonged to the party who might be eventually found entitled to the sum.

7. The ratio of the above decisions make it clear that the plaintiff decree-holder has a lien over the amount deposited in Court the judgment-debtor and the Court holds the said amount in trust for tie Person who might ultimately succeed in Section. There is only a postponement of the right of the plain tiff to receive the said amount which is necessitated because of the pendency of the second appeal. As soon as the second appeal is disposed of against the judgment-debtor ea instanti the decree-holder is the person, who is entitled to the said amount, as on the date when it was deposited it belonged to him and there was only a postponement of the right to collect the money because of the pendency of tire civil proceeding.

8. The supervening legislation did not have any impact on the situation. The words deployed in Section 3 of Act XXI of 1972 are fall arrears of rent and 'all out standings as on 30th June, 1971' are wiped out. The question is whether the Court deposit which is in the custody of Court and which is held by the Court in trust for the successful party, can be said to be an outstanding or arrears of rent within the meaning of the expressions used in Section 3 of the Act. When the legislature has designedly used the expression 'outstanding' it means that if the tenant has already paid in full or in part the rent payable, he has no right to seek for a recovery of it from the landlord. It is only such part of the rent which remained as arrears or which was outstanding on the notified date that is wiped out under the beneficial legislation. In the instant case the amount in Court deposit cannot be said to be arrears of rent or an outstanding rent. It has lost the impress of rent because of the peculiar situation when the money came to Court pursuant to orders of Court in an application for stay of the executior of a money decree. Taking all these factors into consideration I am of the view that the petitioners are entitled to the amount in Court deposit and not the respondents.

9. The order of the lower Court is, therefore, set aside and the Civil revision petitions are followed, but there will be no order as to costs.


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