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Alagirisami Pillai Vs. Laksmanan Chetty Alias Samuel Chetty and anr. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported inAIR1926Mad371; 92Ind.Cas.1021
AppellantAlagirisami Pillai
RespondentLaksmanan Chetty Alias Samuel Chetty and anr.
Cases ReferredSyud Tuffuzzool Hussein Khan v. Rughoonath Pershad
Excerpt:
civil procedure code (act v of 1908), sections 60 146 151, order xxi, rules 46, 53, order xxxviii, rule 6 - debt attachment of--debt ripening into decree--attaching creditor, right of, to execute decree, without attaching decree itself--decree-holder, payment to, by judgment-debtor, whether binding on, attaching creditor--money payable on particular event--interest, provision for payment of--right, whether vested or contingent. - .....the attaching creditor's rights be then defeated by the debtor converting the simple debts into a decree debt and receiving payment? the common sense of the thing demands that this cannot be countenanced.8. the appellant's learned vakil relies upon section 146 of the c.p.c., which runs thus:save as otherwise provided by this code or by any law for the time being in force, where any proceeding may be taken or application made by or against any person, then the proceeding may be taken or application may be made by or against any person claiming under him.9. lakshmana could apply to execute the decree. the appellant as one claiming under him could likewise execute it. this contention seems to me to be perfectly sound. the respondent's learned vakil urges that order xxi, rule 16 governs the.....
Judgment:

Venkatasubba Rao, J.

1. Before dealing with the questions of law raised, I shall briefly set forth the facts.

2. Lakshmana Chetty entered into a partition with his co-parceners, under the deed of division dated 9th February 1918. A sum of money fell to his share and this sum was retained under the terms of that deed with his brother Ramalinga Chetty. The appellant filed a suit for money (O.S. No. 495 of 1919) against Lakshmana and attached before judgment the debt due to him under the partition deed. The appellant on 3rd July 1919 obtained a decree in his suit. Lakshmana sometime after this filed a suit against Ramalinga Chetty (O.S. No. 772 of 1920) for recovery of the money due to him under the partition deed and obtained a decree. Lakshmana and Ramalinga within a month of this decree entered into a settlement and Lakshmana reported satisfaction which was recorded.

3. The decree was obtained by Lakshmana in O.S. No. 772 of 1920, on 2nd February 1921. Satisfaction was entered on 2nd March 1921 and the appellant on 27th July 1921 applied to execute the decree in O.S. No. 772 of 1920.

4. The first question that has to be determined is, can the appellant who has attached the debt but who has failed to attach this decree, execute it as if he has attached the decree also.

5. The attachment of a debt is effected tinder Order XXI, Rule 46, C.P.C. It is made by a written order prohibiting the creditor from recovering the debt and the debtor from paying it. It is conceded that the attachment was in force on the date Ramalinga alleges he satisfied the decree by payment to Lakshmana. Ramalinga in making the payment acted in contravention of the prohibitory order and Lakshmana in receiving the debt was equally guilty of disobedience of that order.

6. Under Section 64, C.P.C., any payment to the judgment-debtor contrary to the attachment is void as against all claims enforceable under the attachment. For the appellant Mr. B. Sitarama Rao, his learned Vakil, contends that if it was incumbent upon him to follow up the attachment of the debt by attaching the decree, Ramalinga could successfully plead that his payment was not void against the attachment of the decree. In other words, if the appellant could trace his rights to the attachment of the debt, the payment relied on by Ramalinga subsequent to that attachment would be void against it; but if the source of the appellant's title should be held to be attachment of the decree, Ramalinga could successfully rely upon the payment made prior to that attachment. To bring out the point of Mr. Sitarama Rao's contention I shall take an illustration. A attaches a debt due from C to B. Then B sues C and obtains a decree. On the same day as judgment is obtained, C pays up the amount to B. If the right rule is that the decree must be attached, A may be easily defeated; for, even more than ordinary diligence on his part will not prevent B from receiving and C from paying the sum decreed.

7. The C.P.C. does not contain a provision to the effect that the payment shall be void not only as against the later attachment of the decree but also as against the prior attachment of the debt. To this extent there is a lacuna in the Code. But by a distinct provision the creditor is prohibited from paying the debt attached. In the circumstances, what is the reasonable view to take? I am prepared to hold that the attachment placed on the debt fastens itself on the decree without any further act on the part of the attaching creditor. The debt matures into and merges in 'the decree and the attachment gets naturally transferred from the debt to the decree. Consistent with the policy and the provisions of the Code this, in my opinion, is the only reasonable view to take. It has been held by the Judicial Committee in Beti Maharani v. Collector of Etawah 8 Ind. Dec. 452 (P.C.) that when a debt is attached a suit for its recovery is not stayed. The order of attachment is infringed only if the restrained debtor pays the debt to the restrained creditor and it is pointed out that very often it may be desirable to institute a suit. Can the attaching creditor's rights be then defeated by the debtor converting the simple debts into a decree debt and receiving payment? The common sense of the thing demands that this cannot be countenanced.

8. The appellant's learned Vakil relies upon Section 146 of the C.P.C., which runs thus:

Save as otherwise provided by this Code or by any law for the time being in force, where any proceeding may be taken or application made by or against any person, then the proceeding may be taken or application may be made by or against any person claiming under him.

9. Lakshmana could apply to execute the decree. The appellant as one claiming under him could likewise execute it. This contention seems to me to be perfectly sound. The respondent's learned Vakil urges that Order XXI, Rule 16 governs the case of a transferred decree-holder, that the provision is complete and self-contained and Section 146 cannot be invoked. I cannot accept this argument. Is there anything in Order XXI, Rule 16 prohibiting persons other than those mentioned in it from being treated as transferee decree-holders? It is only in that case that Section 146 will not apply by reason of the words 'save as otherwise provided by this Code.' To place a narrow construction on Section 146 will be to defeat the very object of that section. In the very nature of things, it is impossible to provide by express provision for every conceivable set of facts that may arise. It is just to meet this contingency that Sections 146 and 151 have been enacted; I am against whittling down the scope of Section 146 by placing a too limited and narrow construction upon it. It must receive its full effect and I think the appellant can invoke it in the present instance.

10. The view I have taken receives strong support from Muthiah Chettiar v. Lodd Govinda Doss Krishna Doss (1921) M.W.N. 649. The point that had to be decided was, could a transferee of a part of the decree execute it? It was contended that he could not and for that position reliance was placed on Order XXI, Rules 15 and 16. The contention advanced may be put thus. Rule 15 refers to a case of a decree passed jointly in favour of two or more persons. In that case, application for execution of the whole decree may be made by one or more of the joint decree-holders. Next Rule 16 provides for the transfer (1) of an entire decree and (2) of the interest of a decree-holder in a decree passed jointly in favour of two or more persons. It was argued that the transfer by a decree-holder of a part of a decree does not fall either under Rule 15 or Rule 16 and the transferee in that case could not, therefore, execute the decree. It need hardly be observed that this was a most unjust contention, the Full Bench holding that Section 146 was applicable rejected the argument. Wallis, C.J., observes that the section should receive a beneficial interpretation and as execution by a transferee of a part of a decree is not prohibited by Order XXI, Rule 16, there is nothing to prevent Section 146 from receiving its full effect. With the observation of Kumaraswami Sastri, J., that the Courts ought not to refuse relief on the ground that the Lagislature has not made provision for a particular case, I entirely agree.

11. I do not think it necessary to refer in detail to the cases cited for the respondent where the scope of Section 146 was restricted. Muthurapore Zemindary Co. v. Bhasaram Mondul : AIR1924Cal661 may be taken as representing a class of cases. But this may be easily distinguished as what was assigned was property in the suit previous to the decree. In Shib Charan Das v. Ram Chandra A.I.R. 1922 All. 98, which may also serve as a type, there was a transfer of the property subsequent to the decree and it was held that the transferee could not invoke Section 146. This case also is distinguishable from the present. But I must dissent very respectfully from the observations made in it in regard to the effect to be given to Section 146. It will be moreover apparent that in the various cases relied on by the respondent (of which these two are typical) the transferee could have safeguarded his position by taking appropriate proceedings under the provisions of the Code. But in, the present instance this element is wanting and, in my opinion, this makes a very great difference.

12. I, therefore, hold that the appellant can rely upon Section 146. Two minor contentions I may now dispose of. First, it is argued that as Lakshamana who certified that the decree was satisiied could not execute it, the appellant could have no higher rights under Section 146. This argument is based upon a misapprehension. The appellant claims under Lakshamana in the sense that he acquired Lakshmana's rights as on the date of the decree. As I have remarked the simple debt became merged in the decree debt and the moment the decree was passed the attachment of the debt became automatically converted into attachment of the decree, and any dealing by Lakshmana will not in consequence be of any avail.

13. The other contention has reference to certain facts which I have not so far mentioned. Lakshmana previous to filing the suit (No. 772 of 1920) against Ramalinga for the recovery of the corpus has instituted against him a suit for the interest on the debt. This suit was O.S. No. 231 of 1919 and was decreed on 16th December 1919. The appellant attached this decree and realised on 27 th July 1920 about a tenth of the amount due to him. It is urged that the rights under the original attachment of the debt became thus exhausted and the appellant rendered himself incapable to pursue further remedies. This argument is untenable as what was attached was the entire debt and the recovery of a portion cannot bar the recovery of the balance.

14. Then remains one of the main contentions raised, namely, that the attachment is void as Lakshmana had only a contingent interest in the sum attached and Section 60, Sub-clause (m), C.P.C., declares such an interest not liable to attachment. Whether Laksmana took a vested or a contingent interest is a question of intention and on a construction of the partition deed I find no difficulty in holding that his interest was vested. It recites that the sum fell to Laksmana's share but is to be retained by Ramalinga who is bound to pay it over to the former at his marriage. Ramalinga cannot in the meantime alienate his property and is enjoined to pay Lakshmana's interest at a rate fixed.

15. It is a well-known rule of construction that if the gift and direction as to payment are distinct, the direction as to the time of payment does not postpone the vesting. The question is, are there words constituting a gift independent of the direction to pay? If there are, the interest is a vested interest. In the deed in question, there is a present gift with a postponed payment and a vested interest is thus created in In re Bartholomew 84 R.R. 95, [In re Hart's Trusts 28 L.J. Ch. 7 121 R.R. 70, Hawkins' Wills, 2nd Edition 1912, pages 270 to 272.] A stipulation that interest shall be given in the meantime, shows that a present gift was intended. A bequest to A to be paid on his marriage with a clause that interest shall be paid till then is vested. Vise v. Stoney 58 R.R. 282. The result is that the last contention also fails.

16. My learned brother thinks that the attachment of the debt cannot become automatically transferred into an attachment of the decree. Although we take different views on this point our conclusions do not materially differ. According to my view, attachment of the decree in the circumstances is not essential; according to my learned brother's view, this attachment cannot be dispensed with, but neither the alleged payment by Ramalinga nor the order of the Court recording satisfaction is an obstacle in the way of the appellant excuting the decree. On the point, namely, whether the appellant, if he relies as a source of his title upon the attachment of the decree, can ignore a payment made prior to that attachment, I would prefer to express no opinion at present. Although we give different reasons for our conclusions, we are agreed that the appellant has not lost his remedy and that he is not bound by the alleged payment or the recording of satisfaction. I have, therefore, no objection to the appellant being directed to amend his execution petition by asking for attachment of the decree and I accordingly agree to the order being in the terms suggested in my learned brother's judgment.

Reilly, J.

17. I agree that Lakshmana Chetti's interest in the Rs. 1,233, to which he was entitled under the partition deed, Ex. III, was a vested interest and not a contingent interest and it was attachable under Section 60, C.P.C. and Rule 6 of Order XXXVIII, Order P.C. on 17th June 1919 as a debt due to him, though on that date he could not enforce payment of it. But with great respect I find myself unable to agree that the appellant was entitled on the strength of his attachment before judgment to execute the decree for that amount which Lakshmana Chetti afterwards obtained in O.S. No. 772 of 1920 on the District Munsif's file without attaching that decree.

18. My view of the position in this case is as follows: The appellant instituted O.S. No. 495 of 1919 on the District Munsif's file a suit for money, against Lakshmana Chetty (respondent No. 1) and on 17th June 1919 obtained in that suit an attachment before judgment of the debt due to Lakshmana Chetty from his brother, Ramalinga Chetty (respondeat No. 2) under Ex. III. The attachment order is not before us; but it is admitted that it was in the usual form, prohibiting Lakshmana Chetty from recovering the Rs. 1,233 or the interest on it and Ramalinga Chetty from paying that amount or the interest on it until the further order of the Court. On 3rd January 1920 the appellant obtained a decree in his suit against Lakshmana Chetty for Rs. 624. It is not disputed that the attachment order prohibiting Lakshmana Chetty and Ramalinga Chetty from recovering and paying the debt respectively was not affected by that decree but remained in full force after the making of that decree. Meanwhile Lakshmana Chetty, who had filed O.S. No. 231 of 1919 against Ramalinga Chetty for the whole debt due to him under Ex. III, had on I6th December 1919 obtained a decree in that suit only for the interest on the principal amount, his claim for the principal amount being dismissed as premature on the ground that he had not then been married and, therefore, had not fulfilled the condition on which the principal was to become payable. The appellant's attach-ment before judgment did not prevent Lakshmana Chetty from prosecuting that suit to a decree; but it did prohibit him from recovering any amount under his decree. The appellant then attached in execution of his own decree the decree for interest which Lakshmana Chetty had obtained in O.S. No. 231 of 1919, executed the latter decree under Rule 53 of Order XXI, C.P.C. and realised the amount due under it, Rs. 68-4-0 from Ramalinga Chetty. It has been suggested before us for Ramalinga Chetty that the execution of this decree of Lakshmana Chetty against him for the interest so far due on the Rs. 1,233 somehow extinguished the appellant's attachment before judgment of the whole debt. I agree that that could not be so and that the order prohibiting Lakshmana Chetty from recovering and Ramalinga Chetty from paying the debt persisted after the execution by the appellant of Lakshmana Chetty's decree in O.S. No. 231 of 1919. Later on Lakshmana Chetty fulfilled the condition of marriage and instituted another suit, O.S. No. 772 of 1920 on the District Munsifs file, against Ramalinga Chetty for the principal amount of Rs. 1,233 and the interest on it not so far recovered. That he was entitled to do in spite of the appellant's attachment before judgment; and he obtained a decree for the whole amount claimed and costs on 2nd February 1921. That decree the appellant could have attached and executed under Rule 53 of Order XXI: as he had already attached and executed: the decree in Lakshmana Chetty's previous suit, Order 8. No. 231 of 1919. But before he bestirred himself to do so, Lakshmana Chetty on 22nd February 1921 took out an arrest warrant against Ramalinga Chetty, who appears to have been arrested under it; on 2nd March, 1921 Lakshmanan Chetty reported to the Court Ramalinga Chetty had paid the full amount of the decree to him, and the District Munsif-recorded full satisfaction. On 27th July-1921, the appellant applied for permission to execute under Rule 16 of Order XXI, C.P.C. Lakshmana Chetty's decree against Ramalinga Chetty in O.S. No. 772 of 1920. That is the petition against the dismissals of which, after confirmation of the dismissal by the Subordinate Judge the present appeal is preferred.

19. The appellant claimed to execute the decree under Rule 16 of Order XXI. He did not attach Lakshmana Chetty's decree under Rule 53 of Order XXI, and in explanation of his failure to do so it is suggested that he could not do so because the recording of satisfaction on 2nd March 1921 stood in his way I may remark that, if the recording of satisfaction stood in the way of this attaching the decree in July 1921 it equally stood in the way of the appellant executing the decree as a transferee under Rule 16 of Order XXI. But I cannot see that the recording of satisfaction was a bar to execution of the decree by the appellant. There is nothing sacrosanct about the recording of satisfaction. As between Lakshmana Chetty and Kamaiinga Chetty the admission of Lakshmana Chetty that he has received the full amount of the decree may be conclusive. So faras the purposes of the Court are concerned, the recording of satisfaction is a mere matter of office business, a note that these proceedings are closed. In my opinion, it cannot be supposed for a moment that by settling the decree between themselves and getting the Court to record satisfaction as between them, Lakshmana Chetty and Kamaiinga Chetty were able to defeat the rights of third parties, still less that they were able by so doing to evade the prohibitory order against them, which was still in force. To allow them so to defeat the order obtained by the appellant would be to allow a clear abuse of the process of the Court and a clear fraud upon the Court. It is not disputed that the District Munsif recorded satisfaction in ignorance of the appellant's attachment before judgment, which was not brought to his notice. Even between the parties to a decree an order recording satisfaction which has been obtained by fraud may be vacated see Paranjpe v. Kanade 3 Ind. Dec. 557 and Vilakalhala Raman v. Vayalil Pachu 7 M.L.J. 172. As stated in Syud Tuffuzzool Hussein Khan v. Rughoonath Pershad 20 E.R. 701 which was quoted before us for another purpose, 'to proceed so far as the practice oi his Court will allow him to re-call and cancel an invalid order is not simply permitted to, but is the duty of a Judge, who should always be vigilant not to allow the act of the Court itself to do wrong to the suitor'. That principle is now clearly recognised in Section 151, C.P.C. In my opinion, had the appellant in July 1921, applied for the attachment of Lakshmana Chetty's decree in O.S. No. 772 of 1920 and had Ramalinga Chetty then objected that he had already satisfied the decree by payment to Lakshmana Chetty, the answer would have been that that payment made in defiance of the prohibitory order obtained by the appellant and still in force, could affect the appellant in no way; and, if it had been further objected that the formal order of the District Munsif made on 2nd March 1921 recording satisfaction of the decree, stood in the appellant's way--and objection which personally I see very little force--it would obviously have been within the District Munsif's power under Section 151, C.P.C. to cancel that order. In my view the proper course for the appellant in July 1921 was to attach the decree in O.S. No. 772 of 1920 under Rule 53 of Order XXI and proceed to execute it agaipst Ramalinga Chetty, who could have raised no effective bar to his doing so. Section 64, C.P.C., would not perhaps have been applicable, as the appellant would not have been enforcing his decree under his original attachment before judgment but under his attachment of the decree itself. But, as the satisfaction of the decree by Ramalinga Chetty could not have been pleaded successfully against the appellant, the road to the execution of the decree by the ordinary procedure of attaching it would have been open to him.

20. It has been contended before us that it was unnecessary for the appellant to attach Lakshmana Chety's decree on the debt in O.S. No. 772 of 1920 because on the making of that decree the appellant's original attachment of the debt is some way developed into an attachment of the decree. With respect I am unable to accept the contention. Attachments in execution or before judgment are in their nature merely means of getting the property concerned into the control of the Court and of restraining the party against whom they are directed from transferring, delivering, changing or destroying the property. By special provisions in Rule 53 of Order XXI an attachment in execution of any of certain special classes of decrees--not all decrees carries with it a special privilege, namely, the right to execute the decree attached. This is a peculiar privilege in itself quite foreign to the idea of attachment and given only by special provisions. Unless those special provisions are complied with, I do not understand how that special privilege can be acquired. In the present case what the appellant got--when the debt was attached at his instance was an order prohibiting Lakshmana Chetty from recovering it and Ramalinga Chetty from paying it. He acquired by that order no right to sue on the debt or to collect it or to give a valid discharge of it. How can the prohibitory order which he obtained grow or ripen into or converted into something quite different, namely, the right to execute a, decree obtained on the debt? It appears to me that that is impossible without some provision of law to that effect. The special privilege of executing Lakshmana Chetty's decree, it is something quite different in nature and effect from the prohibitory order was in my view open to the appellant only if he took, as he could have taken, the special step necessary for obtaining that privilege, namely, the attachment of the decree. Incidentally I may point out as a minor difficulty in the theory that the attachment of the debt automatically develops into the attachment of any decree on that debt that the decree will in most cases include an amount for costs, to which the attachment of the debt itself cannot apply. In the present case the costs awarded to Lakshmana Chetty by the decree in O.S. No. 772 of 1920 were considerable.

21. I do not think it necessary to consider in this case the question whether the appellant should be regarded 'as claiming under' Lakshmana Chetty in any sense within the meaning of Section 146, C.P.C. As the case appears to me, the appellant might have proceeded under the definite provisions of Rule 53 of Order XXI, and it, therefore, is unnecessary and indeed impossible--for him to call in aid for his present purpose the provisions of Section 146. Similarly the appellant is in my view mistaken in attempting to represent that he is in any sense a transferee of Lakshmana Chetty's decree under Rule 16 of Order XXI, instead of claiming his right to attach that decree and then execute it. If I may say so, the appellant, in attempting to make use of Section 146 and Rule 16 of Order XXI in this case appears to be taking a very circuitous route to get round an obstacle which does not really lie in his path or which at the worst would crumble at a touch, namely, the District Munsifs order recording satisfaction.

22. I do not think that the appellant's petition under appeal should have been dismissed. The proper course would have been to allow him to amend it by adding a prayer for the attachment of the decree in O.S. No. 772 of 1920. I agree that the present appeal should be allowed with costs that the dismissal of the appellant's execution petition should be set aside and that the petition should be remanded to the District Munsif for fresh disposal; but I would add a direction that the District Munsif should allow the appellant to add a prayer for the attachment of Lakshmana Chetty's decree in O.S. No. 772 of 1920.


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