1. By an indenture of mortgage, dated the 24th January 1910 and made between Shyamlal Chatterjee of the one part and the respondents to this appeal, Ram Chandra Mistry and others (hereinafter called the mortgagees) of the other part, Shyamlal Chatterjee, in consideration of a previous advance of Rs. 5,178-11-9 made to him by the mortgagees and of further advances to be made to him by them up to Rs. 20,000 (including the said sum of Rs. 5,178-11-9), mortgaged by way of floating-charge his beneficial interest in the trade or business of contractor of stone collections, petty contracts and all and every kind of contract works undertaken by him and carried on at Jaiuti and elsewhere under the Quarrying Division, Lower Ganges Bridge, or wherever the trade or business might be carried on thereafter either under the Quarrying Division, Lower Ganges Bridge, or under any one else who employed him, and also all books and other debts then due or thereafter to become due and owing to him on account of the said trade or business either from the Quarrying Division, Lower Ganges Bridge, or from any other source, including all cheques, cash, etc., that he might receive or become entitled to in connection with his said work or business of a contractor that were then existing or which might thereafter be secured by him and all contracts and agreements, benefits and advantages, that had been or might thereafter he entered into with him or which he might or could bo entitled on account or in respect of the said trade or business and also all stock in trade, materials, goods, fixtures, etc., present or future, in connection with the contract business. The indenture contained a provision for the payment of interest on all sums advanced or to be advanced at the rate of Rs. 12 per cent, per annum with half-yearly rests and also a provision that Shyamlal Chatterjee would not without the mortgagees' consent in writing charge, hypothecate or mortgage the mortgaged premises.
2. The mortgage was presented for registration at Darjeeling on the 26th January 1910 and was registered there on the 2nd February 1910.
3. Subsquently by an indenture, dated the 22nd November 1910 and made between Shyamlal Chatterjee of the one part and Surjamull, the present appellant, of the other part, after reciting that (Surjamull had already advanced money to Shyamlal Chatterjee to the extent of about rupees 8,000 and that Surajmull had agreed to make from time to time farther advances not exceeding with the sum already advanced Rs. 20,000 at any cue time which Shyamlal Chatterjee agreed to re-pay with interest at the rate of Rs. 36 per cent, per annum, and that Shyamlal Chatterjee would execute a power of attorney in favour of Surajmull authorising him to receive all monies which should from time;o time be payable to Shyamlal Chatterjee or from the Eastern Bengal State Railway in respect of the work done by Shyamlal Chatterjee in terms of the contract already secured or to be secured in connection with the left or right bank of the Lower Ganges Bridge and would get the power of attorney registered with the Eastern Bengal State Railway authorities, Shyamlal Chatterjee covenanted with Surajmull to pay the sums already advanced with Interest at the rate of Rs. 36 per cent, per annum and not to draw or receive from the Eastern Bengal State Railway authorities any money payable in respect of the said work until the advance and interest were re-paid and not to revoke the power of attorney.
4. Shyamlal Chatterjee executed power-of-attorney on the same day in favour of Surajmull, nominating Surajmull his attorney to apply for payment and to receive all sums of money due and payable to Shyamlal Chatterjee from the Eastern Bengal State Railway authorities in respect of any bill or bills of Shyamlal Chatterjee in connection with any work done or to be done by Shyamlal Chatterjee under any contract or contracts already secured or to be secured by him and to give proper receipt for the same. It does not appear that this power of attorney was ever registered with the Railway Company.
5. On the 9th March 1912, the mortgagees, under the indenture of the 24th January 1910, recovered judgment against the representatives of the estate of Shyamlal Chatterjee in the Court of the Subordinate Judge at Darjeeling for Rs. 34,388-15-9 and costs, and a declaration of he was made in their favour over the property covered by the mortgage to the extent of Rs. 20,000. The appellant was made a party to the suit but was subsequently dismissed therefrom, the Judge agreeing with the contention put forward on his behalf that he was not a necessary party and stating that if the appellant had any claim to the property covered by the deed of hypothecation he could put it forward in the execution proceedings.
6. On the 15th May 1912, an order was made by the Subordinate Judge of Pabna in the respondents' suit directing the registration and attachment of the money due to the estate of Shyamlal Chatterjee from the Executive Engineer of the Left Bank Division, Paksey and Quarries Division, Lower Ganges Bridge, Paksey, for the work done at Jainti, and on the 28th May 1912, a letter was written by the Subordinate Judge of Pabna to the Examiner of Accounts, Lower Ganges Bridge, Paksey, stating that the sum of Rs. 4,000 and other money bills due to the heirs of Shyamlal Chatterjee for the works scheduled to the letter were attached by the Court at the instance of the respondents and requesting the Examiner to hold the moneys as per bills or otherwise under attachment until further order of the Court. The appellant on the 28th January 1911 instituted a suit for recovery of the moneys due under the indenture of the 22nd November 1910 and applied for attachment, the order for which was made absolute on the 5th April 1911, and on the 22nd May 1912 the appellant obtained a decree against the heirs of Shyamlal Chatterjee for Rs 12,771-5-3 and costs and on the 23rd May 1912, an order was made in the suit for the registration and attachment of the bills payable to Shyamlal Chatterjee's estate in the office of the Executive Engineer, Left Bank, and Quarry Division, Lower Ganges Bridge, Paksey, and on the 30th May 1912 and 1st June 1912, the Officiating Subordinate Judge of Pabna wrote two letters to the Executive Engineer, Quarry Division, Lower Ganges Bridge, Paksey, requesting that two sums of Rs. 4006-8-10 and Rs. 9,970-12-8 be sent to the Court for payment to the appellant. The Examiner of Accounts on the 12th-13th June 1912 sent Rs. 12,284-5-4 in payment of the amounts referred to in the letters of the 30th May 1912 to the Subordinate Judge of Pabna, but on the 20th June 1912 an order was made that the appellant was not to receive any payment of the money pending the disposal of the respondents' application for rateable distribution.
7. The two execution cases eventually came on for hearing together before the Subordinate Judge of Pabna, the respondents asking that the question of title and priority in respect of the money in Court should be decided under Order XXI, Rule 52, Civil Procedure Code, and that a declaration should be made in their favour that the appellant's right to the money in Court was subject to the charge created in favour of the respondents by the indenture of the 24th January 1910 and the decree of the 9th March 1912 of the Darjeeling Court, and in the alternative they asked for rateable distribution under Section 73 of the Code of Civil Procedure. The appellant contended that Order XXI, Rule 52, did not apply and that the executing Court could not decide the question of priority between rival decree-holders except under Section 73 of the Code of Civil Procedure and that the respondents had no lien on the money and had abandoned their position as charge-holders. The Subordinate Judge decided against the appellant's contentions and found that the respondents had established their lien on the whole of the money in Court. The appellant now appeals against this decision on the following grounds:
(1) That Order XXI, Rule 52, is not applicable as it only applies when the money is in some other Court than that in which the order for attachment is made, the object of the rule being to prevent a conflict of jurisdiction between two Courts and not to attach property, and that the proper section, to proceed under in a case like the present is Section 73 of the Civil Procedure Code;
(2) that even if the order is applicable, it is only applicable to a case in which the money is in the custody of the Court before the application for attachment is made and that it does not apply to cases like the present where the money did not come into Court until after the application for attachment was made, and when if in fact any attachment was made the money was not then in Court; (3) that there never was in fact any attachment by the respondents after the money came into Court and that the Court accordingly could not decide the question of priority; (4) that the decree of the respondents was not executed as a mortgage-decree and is in fact only a money decree, and we were referred to the case of Harsukh v. Meghraj 2 A. 345 at p. 347. The decree was further attacked on the ground that it contained no direction for sale and that it is too vague to be enforced, as it does not specify the property to be included.
8. With regard to the first contention, in our opinion, Order XXI, Rule 52, is clearly applicable to a case like the present and we see no reason to narrow the words of the rule so as to make it applicable only to a case in which the property sought to be attached is in the custody of a Court other than that executing the decree, and there is no other section in the Act providing for attachment where the property is in custody of the same Court. Order XXI, Rule 46 excepts property deposited in or in the custody of any Court from the operation of the rule and Section 73 relates to rateable distribution.
9. This really disposes of the appeal, but as the other contentions were argued in considerable detail before us and as we are asked to exercise our revisional jurisdiction under Section 115 of the Code of Civil Procedure, we have considered them and embody our conclusions in this judgment.
10. With regard to the second and third grounds, the facts appear to be these. The respondent in his application, dated the 16th May 1912 for execution of his decree, prayed for attachment and sale of the properties of the judgment-debtor, and the Court ordered that the money due to the judgment-debtor from the Executive Engineer might be attached. There is on the record the draft of a letter from the Court to the Examiner of Accounts, informing him that the moneys and bills due to the judgment-debtor in his hands were attached by the Court, and requesting him to hold the moneys as per bills or otherwise, under attachment until further orders of the Court. It is said that there is nothing to show that the letter was actually sent. But in the respondent's application, dated the 15th June to the Court, he stated that rubakar of attachment had been sent. The Court ordered the petition to be put up in the presence of the Pleaders of both parties on the 17th June, and we do not find any exception taken to the said statement in the petition, either by the Court or by the appellant, which indicates that the statement was correct. The said attachment, however, related to the monies in the hands of the Engineer. They had not then come into Court. The cheques arrived in Court on the 13th June 1912 in pursuance of the Court's order on the application of the appellant. On the 15th June the respondents presented two petitions to the Court, by one of which he complained that the appellant was trying to take out, in disobedience of the Court's order, the monies and bills and praying that they might be kept under attachment and that a ruhakar might be sent soon, and by the other petition he prayed that the cheques which had arrived in Court that day and which the appellant was trying to take out, might be kept under attachment by an order under a rubakar of the Court and that the same might not be made over to the appellant. He also prayed for criminal prosecution of certain persons for disobedience of the Court's order passed in his execution case. The Court thereupon made the following order: On the application of the decree, holder for withholding the payment of money to Surajmull Agarwala, decree-holder, in Execution Case No. 84 of 1912. Let the prayer be allowed, and it appears from the order-sheet in Execution Case No. 84 of 1912 that the appellant was directed not to receive any payment of money deposited into the treasury unless and until the application of the respondent (erroneously described in the order as an application for rateable distribution) was disposed of. It is true the order-sheet merely mentioned the prayer for withholding the money, but we think the order virtually amounted to an attachment. There is no doubt that the respondent did apply for attachment of the money in the custody of the Court, and though there was not the formal order that the money be attached (that being the ground for the appellant's contention that there was no attachment), the Court ordered the money to be held subject to the orders of the Court. Now, whore the property to be attached, is in the custody of any Court, the attachment, in the words of Order XXI, Rule 52, shall be made by a notice to such Court that such property may be held subject to the further order of the Court, and this was what was done.
11. On the 4th January 1913, the Subordinate Judge directed the respondent to put in a petition within two weeks stating the section of the Code under which he could set up a miscellaneous case making the decree-holder in the other execution case as opposite party and try the matter in controversy between them in a regular way, as he was unable to find from the records in the two execution cases a regular petition of claim to or objection to the payment of money brought under attachment,' and that till then the money under attachment will be held as it is.' The respondent accordingly on the 11th January 1913 made an application praying that a formal order of attachment in strict literal compliance with the provisions of Order XXI, Rule 52, might be made, but he asserted, that the application for attachment of the money in Court which was made on the 15th June 1912, had been granted by the Court and that attachment was in effect made, but that in order to obviate any objections that thereafter might be raised, he applied for a formal order of attachment under Order XXI, Rule 52.
12. On the 26th April the respondent applied for amendment of his application for execution of decree. These petitions were rejected on the 10th May 1913 and on the 16th May 1913, the Court decided the case in favour of the respondent. The appellant relies upon these petitions and the order rejecting them, and upon the fact that respondent's Counsel pressed for the said amendment and for the attachment of the amount in Court, as showing that no attachment was effected at all. It seems to us, however, that the Court in rejecting the petitions considered them to be unnecessary. In any case if there was an attachment, as we think there was, effected on the 17th June 1912, the mere fact that the respondent by way of abundant caution prayed for formal attachment in strict compliance with the terms of Order XXI, Rule 52, would not take away the effect of the attachment already made. The order of the 4th January that till then the money under attachment will be held as it is, shows that the Court also thought that the money was under attachment.
13. We are accordingly of opinion that there was also an attachment of the money after it came into the custody of the Court.
14. With regard to the fourth ground urged by the appellant and the form of the decree, we do not see that there was any necessity to direct an account of what was due to the respondents, in respect of their mortgage, as the amount due was found by the judgment and is stated in the decree and the property charged is sufficiently identified in the decree and in fact it was not seriously disputed before us that the money in Court was covered by the respondents' charge. With regard to the contention of the appellant that the decree is faulty in form as it contains no order for sale, of course the decree-holder is responsible for getting a decree in such a form that he can enforce it, but we see no difficulty here in the respondents' way on this account As they have a decree declaring a charge on certain sums of money and other things and as there is now in Court a sum of money which, as above stated, is (dearly covered by their charge, we see no reason why once the priority of the charge is established (as in fact has been done) they should not receive payment of this sum. We know of no authority that debars us from so holding on the ground that the mortgage-decree in a case like the present must be in a particular form. With regard to the case of Harsukh v. Meghraj 2 A. 345 at p. 347 it does not appear from the report what property was there charged, but the case of Muluk Fuqurer Bukhsh v. Manohur Das (1870) 2 N.W.P.H.C.R. 29 which was referred to and which is stated in the head-note to have been followed, was a case of a charge upon immoveable property, when different considerations apply; accordingly if the property charged in Harsukh v. Meghraj 2 A. 345 at p. 347 was immoveable property, the decision is not applicable to the present case, but in any case the decree in that case did not as hero contain a reference to the property covered by the deed of: hypothecation, which is sufficient to distinguish it from the present case. The other cases quoted to us depend on the particular circumstances of the case and do not cover the present case.
15. There remains for consideration the question of priorities. In the present case neither party seems to have thought fit to perfect their charge by giving notice to the persons who were to make the payments to their mortgagor and accordingly apart from any question of notice the respondents' charge which is prior in date must prevail. The District Judge, moreover, has fixed the appellants with notice suit although in our view this is not clearly established, it is difficult to believe in view of the rate of interest charged that the appellants did not know of the respondents' charge.
16. The appeal accordingly fails and must be dismissed with costs, 10 gold mohurs.
17. No order will be made upon the Rule which will be dismissed.