1. This application raises a question of some importance. It is an application to the Court under the revision section (Section 622) of the Civil Procedure Code to set aside an order made by the Small Cause Court. I have taken some time to consider this case, not because I have entertained any doubt, but because I thought it desirable to hesitate before interfering with the considered judgment of two able and experienced Judges of the Small Cause Court. I have no doubt whatever that the Judges of the Small Cause Court were wrong.
2. The only question is whether, considering a recent ruling of the Privy Council, and the interpretation which has been given to that ruling by a Full Bench of the High Court of the North-Western Provinces, I have power to interfere. The facts are as follows: On the 23rd of June 1885 Sew Bux Bogla obtained a decree in the Calcutta Small Cause Court against Shib Chunder Sen and Hurry Narain Sen for Es 1,397-11 to be paid by instalments of Rs. 50 a month.
3. On the 7th of January 1886 certain property of these defendants was attached in execution of this decree. In considering this case it occurred to me that there might be a question as to whether this attachment was valid, as the decree provides for payment by instalments, and was silent as to execution going for the whole amount in case of the failure to pay any instalments. I do not think, however, that I need consider this question, as the validity of Rule 34 of the rules of the Small Cause Court has not been impugned by Mr. Bonnerjee, On the 31st of August 1885 Bhugwan Doss Bogla obtained a decree against Shib Chunder Sen and Hurry Narain Sen for the sum of Rs. 1,241-14-3 to be paid by instalments of Rs. 100 a month.
4. On the 8th of January 1886 Bhugwan Doss applied for attachment of the defendants' property, and on the same date a warrant of attachment was issued, but the property was not attached. On some day between the 8,th and the 15th of January 1886 the defendants filed their petition in the Insolvent Court and the usual vesting order was made.
5. The result of this was that the Official Assignee obtained a title to the property attached, subject only to Sew Bux Bogla's attachment. To get rid of this attachment the Official Assignee, on the 15th of January 1886, paid into Court the amount of Sew Bux Bogla's decree, and the property was accordingly released.
6. Bhugwan Doss applied for a share of this money under Section 295 of the Civil Procedure Code, and his claim has been allowed by the Small Cause Court.
7. Section 295 is as follows: 'Whenever assets are realised by sale or otherwise in execution, of a decree, and more persons than one have, prior to the realisation, applied to the Court by which such assets are held for execution of decrees for money against the same judgment-debtor, and have not obtained satisfaction thereof, the assets, after deducting the cost of the realisation, shall be divided rateably among all such persons.' In this case I think that no assets have been realised by 'sale or otherwise in execution of a decree.'
8. These words, I think, provide only for the case where, by the process 'f the Court in execution of a decree, property has become available for distribution amongst judgment-creditors.
9. The section does not compel a judgment-creditor whose debt is satisfied by the Judgment-debtor or, as in this case, by a person standing in the shoes of the judgment-debtor, to share with other persons the money received by him in satisfaction of his judgment. The construction put upon the section would prevent a judgment-creditor from coming to an arrangement with his debtor. If the property attached in this case were more than sufficient to pay off both decrees, the attaching creditor, although he has a preferential title to the Official Assignee would be deprived of his rights by the money being paid into Court.
10. This result was, I am sure, never contemplated by this section.
11. It would in reality take away from a creditor the benefit which an attachment gives him against the Official Assignee.
12. This section was considered by a Bench of the Bombay High Court in the case of Purshotamdass Tribhovandass v. Mahanant Surajbharthi Haribarthi I.L.R. 6 Bom. 588. In that case a judgment-creditor executed his decree by arrest. The debtor, on being arrested, paid the amount of the decree, and was discharged. Another judgment-creditor who had applied for execution of his decree, claimed to be entitled to a share of the money paid by the judgment-debtor.
13. It was held that this money was not realised by sale or otherwise in execution of a decree, and that 'realised' in Section 295 means realised from the property of the judgment-debtor. I do not think that in this case the money was realised out of the property of the judgment-debtor. Suppose that a friend of the judgment-debtor had paid off the decree for him, it is clear that it could not in that case be said that the money was realised out of the property of the judgment-debtor. It surely makes no difference that the money was paid by the Official Assignee. The Bombay High Court points out that the view they take is confirmed by Section 341, Clause (b), which provides for the discharge of the judgment-debtor from arrest, 'at the request of the person on whose application he has been imprisoned,' so, as they say, this seems to assume that the arresting creditor may avail himself of the arrest to enter into any arrangement he thinks proper with the debtor behind the back and independently of other creditors who may have applied for execution. In this case also the attachment would be removed, and the Official Assignee would acquire the property directly the decree is paid off, or an arrangement be come to between him and the attaching creditor.
14. I think that 'by sale or otherwise' means by sale or by other process of execution provided for in the Civil Procedure Code. If the Small Cause Court Judges were bright in their construction of the section, the following might occur: A debtor might pay off an attaching creditor who would have to divide the money with other creditors who had applied for execution, and then these other creditors might by attachment or otherwise realise the whole of their money, whereas the first attaching creditor only receives a portion, and could not receive more out of the property of the judgment-debtor, as the judgment-debtor had paid off his debt. The judgment of the Small Cause Court being in my opinion wrong, the question is whether I can interfere with its order under Section 622 of the Civil Procedure Code.
15. I can only do so if I think that the Small Cause Court has exercised a jurisdiction not vested in it by law or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity.
16. This section has been recently considered by the Privy Council in the case of Amir Hassan Khan v. Sheo Baksh Singh L.R. 11 I.A. 237 : I.L.R. 11 Cal. 6. All that case really decides is that Section 622 does not give a right of appeal on questions of law, and that in case where the Subordinate Court has jurisdiction, the superior Court can only interfere where that Court has acted illegally and with material irregularity in the exercise of such jurisdiction.
17. A Full Bench of the Allahabad High Court in the case of Magni Ram v. Jiwa Lal I.L.R. 7 All. 336 held that the Privy Council decided, in the case I have referred to, that only questions relating to the jurisdiction of the Court can be entertained under Section 622. I think that the Privy Council did not only include in Section 622 questions relating to the jurisdiction of the Court, but also questions relating to the exercise of the jurisdiction of the Court. The Allahabad Court leaves out of consideration the words 'or to have acted in the exercise of its jurisdiction illegally or with material irregularity,' words to which the Privy Council distinctly gives effect. Can I in this case say that the Small Cause Court, to use the words of the Privy Council and of the section, exercised their jurisdiction 'illegally or with material irregularity'? It is not easy always to draw a clear line between an illegal exercise of jurisdiction and a mistake of law. If A sued B for some property, and the Court gave a decree to who was not a party to the suit, this would come clearly under this section. The adoption of a procedure different from that provided by law and such as to cause, material injury to the suitor could, I think, be dealt with by Section 622. The application of a section of the Code to a case to which it does not apply stands, I think, upon the same footing.
18. This is what has been done in the present case. It seems to me that, as held by Mr. Justice Straight and Mr. Justice Turrel, in Badami Kaur v. Dinu Rai I.L.R. 8 All. 111 a material irregularity includes an irregularity of procedure materially affecting the merits of the case. The illustration which Mr. Justice Straight gives, namely, the, seizure of the costs of a judgment-debtor, in some respects has a resemblance to the present case. I think that the decision of the Small Cause Court must be set aside with costs.