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Haridas Acharjia Chowdhry and ors. Vs. Baroda Kishore Acharjia Chowdhry and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1900)ILR27Cal38
AppellantHaridas Acharjia Chowdhry and ors.
RespondentBaroda Kishore Acharjia Chowdhry and ors.
Cases ReferredTuffazal Hossein Khan v. Raghu Nath Prasad
Excerpt:
attachment - subject of attachment--civil procedure code (xiv of 1882), section 266--meaning of the word 'debt '--attachment in execution of decree--prohibitory order--attachment of maintenance allowance. - .....extending from september 1888 to november 1890, and that there was no legal attachment of that money.6. the attachment order of the 5th august 1887 is, moreover, giving it the widest scope, of an extremely ambiguous character, and cannot be said to operate as an attachment of the sum of money now claimed. it recites that the judgment-debtor is entitled to get from the first defendant a monthly allowance of rs. 100; that the decree-holder prays that the amount of the monthly allowance should be attached and appropriated to the satisfaction of his decree; and that an order for the attachment of half the allowance due to the judgment-debtor has been passed. it then proceeds thus, 'you are, therefore, informed under order passed today that, if the sum of rs. 100 be due from you to the.....
Judgment:

Macpherson and Stevens, JJ.

1. This appeal raises, amongst other questions, the question of the meaning of the word 'deht' in Section 266 of the Civil Procedure Code, which describes the property liable to attachment and sale in execution of a decree.

2. It appears that one Bishan Chund Dudhuria in 1883 obtained a decree against the second defendant, who is the adoptive mother of the first defendant, and that this decree was purchased by the plaintiffs' father. In 1885 the first defendant executed a deed by which he bound himself to pay to the second defendant a maintenance allowance of 100 rupees per month during the time of her life, and he secured the payment of that sum by the mortgage of certain properties. On 5th August 1887 the plaintiffs, in execution of the decree purchased by their father, obtained a prohibitory order upon the first defendant directing him not to pay half the amount of the maintenance allowance to the second defendant. It will be necessary hereafter; to refer more particularly to the exact terms of that order, but under it half the maintenance allowance for the period extending from August 1887 to 1888 was attached, sold, and purchased by the plaintiffs. The plaintiffs then brought a suit against the first defendant to obtain that money, and got a decree. Subsequent to this the plaintiff's, again acting upon the prohibitory order of the 5th August 1887, proceeded to sell through the Court in execution of their decree half the allowance due from [sic] the period extending from September 1888 to November 1890, amounting to Rs. 1,350, and on the 20th May 1891 they purchased the allowance so due for Rs. 165. The present suit is brought against the first defendant to enforce the payment of that amount.

3. Both the lower Courts have held that before the 20th May 1891, the date of the plaintiffs' purchase, and even before the issue of the notice of the 16th January 1891 calling upon the defendant to pay the money into Court, the amount claimed had been paid to the second defendant and that there was nothing due. That being so, it seems clear that the plaintiffs by their purchase bought nothing as the debt purchased by them had been satisfied and was not then in existence.

4. In this state of things Mr. Rill for the appellants has contended that the first defendant is not entitled to plead payment of this debt, as the effect of the prohibitory order of the 5th August 1887 was to attach the money; and that any payment by the first defendant subsequent to such attachment was null and void. That, therefore, raises the question whether the order of the 5th August 1887 effected any valid attachment of the money now claimed. Section 266 of the Civil Procedure Code provides that debts, amongst other things, may be attached and sold, and the question, therefore, is what is the meaning of the word 'debt' in that section.

5. We think it is clear that a debt may include a sum of money due by one person to another, and which is actually payable at the time, as well as a sum of money which is due but not actually payable then. We will assume that the word as used in Section 266 has the wider meaning and includes both descriptions, as it is not necessary for the purposes of this case to restrict the meaning. All the authorities seem to show that a debt must be a perfected and absolute debt, not merely a sum of money which may or may not become payable at some future time, or the payment of which depends upon contingencies which may or may not happen. The Common Law Procedure Act in England provides that 'debts due or accruing' may be attached, and the construction which was put upon the word 'accruing' was that it must be an actually existing debt and not merely a debt which might or might not become due. The case of Tuffazal Hossein Khan v. Raghu Nath Prasad (1871) 7 B.L.R., 186: 14 Moore's I.A., 40, also clearly indicates that an attachment must operate at the time of attachment upon some existing debt, and that it must not be of an anticipatory character, so as to fasten upon some future state of property. There must be at least an existing debt though it may be payable on a future date. It seems to us impossible to hold that on the 5th August 1887 there was any existing debt in respect of the maintenance allowance which might become payable during the period extending from September 1888 to November 1890. The allowance was only payable to the second defendant during her life-time. If she died before September 1888 there obviously would have been no money due at all. We think, therefore, that the Court could not, on the 5th August 1887, legally attach the money that might become payable as maintenance to the second defendant for the period extending from September 1888 to November 1890, and that there was no legal attachment of that money.

6. The attachment order of the 5th August 1887 is, moreover, giving it the widest scope, of an extremely ambiguous character, and cannot be said to operate as an attachment of the sum of money now claimed. It recites that the judgment-debtor is entitled to get from the first defendant a monthly allowance of Rs. 100; that the decree-holder prays that the amount of the monthly allowance should be attached and appropriated to the satisfaction of his decree; and that an order for the attachment of half the allowance due to the judgment-debtor has been passed. It then proceeds thus, 'you are, therefore, informed under order passed today that, if the sum of Rs. 100 be due from you to the debtor, you should not pay a moiety of the said amount to the debtor until further orders are passed by the Court, and that you should deposit the said moiety in Court. 'There is nothing in that order, whatever its intention may be, to effect an attachment of the money now claimed. It is also, we think, a very doubtful question, whether the attachment made by the order was not spent when the property attached under it was sold. It is not necessary, however, to decide that question as we think there was no valid attachment of the debt sold at the sale of the 20th May 1891; and, as already stated, there was no existing debt at that time. It follows that the plaintiffs acquired nothing by their purchase, and that there was nothing to prevent the first defendant from paying the money to the second defendant.

7. In the previous proceedings to enforce payment of the maintenance charge for the earlier period extending from August 1887 to August 1888, the plaintiffs obtained a decree which was confirmed up to this Court. It was suggested, but hardly argued, that decree operated as res judicate in the present case. It is sufficient to say that the decree has not been put in, and that the contention is on that ground untenable. Besides this, for the reasons given by the District Judge, if for no other reasons, the decree could not operate as res judicata in the matter now in dispute. The previous suit was cognizable by the Munsif and was tried and determined by him. The present case was cognizable only by the Subordinate Judge and was tried by him.

8. We have been referred to the judgment of this Court in that suit by way of a precedent; but it appears to us that it has no bearing on the present case. Then, at the time of the sale, there appears to have been a debt actually due by the first defendant to the second defendant, and the main question was whether the sale was vitiated by the absence of an attachment. The Court considered that the omission to attach did not vitiate the sale; but it also considered that there was an attachment of some kind sufficient to give validity to the sale. It did not, however, hold that attachment was effected by the order of the 5th August 1887.

9. We think that the decision of the District Judge in this case is right. The appeal is accordingly dismissed with costs.


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