1. It is unfortunate that the respondent has not appeared in this case but Dr. Pal who appears for the appellants, has put the case with great fairness before us. It appears that the appellants brought a suit for partnership and accounts on 22nd September 1921 against two other persons who have since been adjudicated insolvents. The suit was brought by the plaintiffs who were two brothers and their case was that there had already been accounts taken and a sum of Rupees 2,000 odd was found due from the defendants who have been declared insolvents subsequently. The defence of the defendants in that suit was the denial of the averment about the accounts taken. The parties went into an arbitration and an award was given. The award was against the defendants for a sum of Rs. 1,600 out of which they deposited Rs. 500 with a certain gentleman and offered to deposit Rs. 1,000 with the plaintiffs pleader Bhabani Gobinda Choudhury. An order was made by the Court in that suit on 27th September 1921 to the following effect:
It is agreed by the parties that defendants should deposit Rs. 1,000 in cash by 29th September with Babu Bhabani Gobinda Choudhury, pleader for the plaintiffs, in part satisfaction of the money to which the plaintiffs may be entitled. If the defendants fail to make this deposit, order on the plaintiffs' application for appointment of receiver 'will be passed on 29th September.
2. On 29th September the following order was made:
The defendants have paid Rs. 1,000 to plaintiffs' pleader Babu Bhabani Gobinda Choudhury.
3. On the 30th there is the further order:
The plaintiffs' prayer for payment of Rupees 1,000 deposited by defendants with Babu Bhabani Gobinda Chaudhury, pleader for the plaintiff, is considered. Defendants oppose the petition. I think that the money should be kept in deposit with Babu Bhabani Gobinda Choudhary until further orders. This order will not affect the plaintiffs' right to interest to which they may be found entitled to.
4. The suit was dismissed by the Court of first instance; but eventually on 18th February 1931 that decree of dismissal was set aside and the suit was decreed for Rs. 2,048-3-9 with costs and interest as per judgment. In the meantime another creditor of the defendants in that suit filed a petition in insolvency on 17th September 1930 and had an ad interim receiver appointed in those proceedings on 15th November 1930. The defendants were adjudicated insolvent on 15th May 1931. The receiver applied for withdrawal of this sum which was deposited with Mr. Bhabani Gobinda Choudhury pleader for the plaintiffs as being the amount payable to the plaintiffs in the event they succeed in the Partnership account suit. On the application of the receiver the learned District Judge of Rajshahi passed the order that this sum of Rs. 1,000 which was in deposit with Mr. Bhabani Govinda Choudhury must be treated as a part of the assets of the insolvents and he accordingly directed that the money should be paid to the Receiver for the benefit of the general body of the creditors of the insolvents. It is against this order which is dated 4th May 1931, that the present appeal has been brought and it is argued that the learned District Judge was not right in treating this sum as money which had been attached before judgment and in applying the rule of law that attachment before judgment does not confer upon the decree-holder any right prior to that of the Official Assignee and that a decree does not constitute the judgment creditor a secured creditor and give him any charge or lien over the attached property. It is said that this principle has no application to the present case. So far as the statement of the law is concerned with regard to the properties which were attached before judgment no question can be raised; and it has been conceded by the learned Advocate for the appellants that the Judge is right in the view of law regarding the properties attached before judgment under Q, 38, Rule 5, Civil. P.C.
5. But it is argued that in this case the money was really ear-marked for the plaintiffs and the effect of the order of 27th September 1921 which has been quoted above is to treat this money as being payable to the plaintiffs the moment they obtain the judgment for the sum or anything in excess of that sum. It is argued that the effect of the deposit and of the order of 27th September 1921 is that it really belongs to the plaintiffs or to the person who is found eventually to be entitled to the sum in dispute. As authority for this contention reference has been made to some English cases as well as to some Indian cases. Reference may be made to the case of Ex parte Banner In re Keyworth (1874) 9 Ch. 379 and to the case of Bird v. Barstow (1892) 1 QB 94. In the first ease a certain sum was paid into Court in order to abide the event of action and this was said by James, L.J., in that case.
It is similar to what is constantly done in this Court when a bill is filed to restrain an action at law, and the plaintiff is ordered to pay into Court the amount claimed in the action. It belongs to the party who is found eventually to be entitled to the sum in dispute.
6. In the latter case the facts were as follows:
In an action against the defendant, a widow, on a covenant for payment of money entered into by her when she was a married woman, the plaintiff applied for leave to sign judgment under Order 14. An order was made giving the defendant leave to defend on bringing into Court Rs. 500 which she accordingly did. On the trial of the action the Judge gave judgment for the plaintiff, but directed that the money should remain in Court pending an enquiry whether the defendant had separate property available in execution.
7. It was held that the meaning of the order under Order 14, was that the money was to be brought into Court to abide the event, and that the plaintiff being successful was entitled to have the money forthwith paid to him. It was pointed out in that case that the effect of the order was to secure the plaintiff in obtaining satisfaction of a judgment, if he obtains one, on the terms that if he does, it (the money) shall be paid out to him, so far as it goes to satisfy the judgment. Following these cases the Judges in the Indian Courts have taken the same view. Reference may be made to the case of Chowthmull Maganmull v. Calcutta Wheat and Seeds Association : AIR1925Cal416 and to the case of Ramiah Aiyar v. Gopaliar AIR 1919 Mad 607. It makes no difference in principle as to whether the money was actually deposited in the Court or whether the money was put into the hands of the plaintiffs' pleader under the order of the Court earmarking that money to be paid to the plaintiffs in part satisfaction of the money to which the plaintiffs might be found entitled as a result of the pending action. In this view we are of opinion that the order of the learned District Judge must be set aside and we direct that the receiver be directed to pay this sum of Rs. 1,000 if he had taken it under the order of the District Judge, to the appellants. No order is made as to costs.
M.C. Ghose, J.
8. I agree.