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P.S. Narayanasawmi Ayyar Vs. A. Mallu - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported inAIR1936Mad251; 161Ind.Cas.473
AppellantP.S. Narayanasawmi Ayyar
RespondentA. Mallu
Excerpt:
civil procedure code (act v of 1908), section 64, order xxi, rule 46, clause (3) - attachment of rent due to judgment-debtor for simple money decree--payment of rent into court to credit of simple mortgagee in suit to enforce mortgage--validity of payment--simple money decree-holder's right to rent as against mortgagee. - .....the right view to take. but somehow the same district munsif has now changed his opinion. in the present suit, he has held that this order of his dismissing the present plaintiff's application for payment out might have been questioned by appropriate proceedings but that nonetheless the deposit made to the credit of the mortgage suit must be treated as payment of rent into court by the tenant, sufficient to discharge him from any further liability.3. i am unable to agree in the view now taken by the lower court, order xxi, rule 46, clause (3) of the code of civil. procedure provides' that a debtor prohibited under clause j of that rule from making payment of a debt until further orders of the court 'may pay the amount of his debt in court' and such payment shall discharge him as.....
Judgment:

Varadachariar, J.

1. This revision petition arises out of a suit filed by the petitioner, as Receiver appointed in execution of his decree in S.C.S. No. 22 of 1932, against the defendant who is a tenant of the judgment-debtor in that suit. The amount decreed in S.C.S. No. 22 of 1932 was sought to be recovered out of the rent payable by the defendant to the judgment-debtor in Kanni 1108. The attachment seems to have been confirmed and plaintiff appointed Receiver for the collection of the amount, by order dated July 14, 1932. About this time a simple mortgagee of the land from the judgment-debtor had filed a suit O.S. 130 of 1930 to enforce his mortgage, and during the pendency of that suit he applied for the appointment of a Receiver. In connection with that Receiver petition, the mortgagor proposed on July 20, 1932 to deposit to the credit of the mortgage suit the Kanni rent of the mortgaged properties and the amount was fixed at Rs. 350. Time was given till July 27. On July 27, the present defendant who was the tenant in possession of the land thought fit to apply to be impleaded as a defendant in the mortgage suit, and on July 28, he deposited to the credit of that suit the sum of Rs. 350 in fulfilment of the undertaking given by the mortgagor on July 20. The tenant also seems to have filed an undertaking to pay future rents into Court as and when they fell due, with the result that the petition for appointment of a Receiver in the mortgage suit was dismissed.

2. It will be noticed that the payment of Rs. 350, into Court was nearly two weeks after the attachment in S.C.S. No. 22 of 1932 had been confirmed. The plaintiff as Receiver in the Small Cause Suit applied to the Court to be paid out of this deposit; the amount due under the Small Cause decree, evidently on the assumption that it is only the balance that can be available to the mortgagee. But the Court dismissed the application stating that it was the mortgagor who had been directed to deposit the money into Court, and the fact that he caused the tenant to make the deposit will not justify the view that the amount in deposit represents the rent attached by the present petitioner. If 1 may say so, this was the right view to take. But somehow the same District Munsif has now changed his opinion. In the present suit, he has held that this order of his dismissing the present plaintiff's application for payment out might have been questioned by appropriate proceedings but that nonetheless the deposit made to the credit of the mortgage suit must be treated as payment of rent into Court by the tenant, sufficient to discharge him from any further liability.

3. I am unable to agree in the view now taken by the lower Court, Order XXI, Rule 46, Clause (3) of the Code of Civil. Procedure provides' that a debtor prohibited under Clause J of that rule from making payment of a debt until further orders of the Court 'may pay the amount of his debt in Court' and such payment shall discharge him as effectually as payment to the party entitled to the same, the payment contemplated here is payment into the attaching Court so as to be available for the attaching decree-holder and not payment into the particular Court house even when the payment is ear-marked for some other purpose. Turning now to Section 64 of the Code of Civil Procedure it provides that any payment to the judgment-debtor of the attached debt contrary to the attachment shall be void as against all claims enforceable under the attachment. The mere fact that the debtor does not pay money into the hands of the judgment-debtor but to somebody else will not make it any the less payment contrary to the attachment, if payment is made at the instance of or for the benefit of the judgment-debtor. If, on the other hand, the person who has been prohibited from paying the debt by one Court pays it elsewhere, or even into the same Court, under compulsion of law, the position maybe different.

4. Bearing these considerations in mind we may turn to the circumstances under which the sum of Rs. 350, was deposited to the credit of the mortgagee's suit on July 28, 1932. As pointed out by the District Munsif when dismissing the present plaintiff's petition in that suit, it was the mortgagor defendant who had been directed to make the deposit to avoid the appointment of a Receiver. On the date of that order the tenant was not even a party to that action. Whether the tenant was right or wrong in imagining that unless the deposit was made, he might be dispossessed by the Receiver is not a point that arises for consideration, though, I confess, I am not able to see how the tenant could have been dispossessed by the Receiver if he held under a term lease. If for the purpose of securing some advantage for himself or to secure some convenience to his lessor, the tenant voluntarily comes into Court and deposits the amount to the credit of the mortgage suit, he certainly cannot claim to have paid the money under compulsion of law. The reasonable interpretation of the transaction is that the payment was one made to the judgment-debtor having been made into Court at his instance.

5. This District Munsif has erred in assuming that the present plaintiffs claim as attaching decree-holder cannot prevail as against that of the mortgagee. He was only a simple mortgagee, and as such, had no right to the rents and profits till after appointment of a Receiver.

6. The decree of the lower Court is accordingly set aside and the plaintiff will have a decree for Rs. 183-4-8 with interest at six per cent, per annum on Rs. 150 from September 1, 1932, up to the date of payment. The plaintiff will be entitled to his costs both here and in the Court below.


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