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(Mahant) Murlidas Vs. Baijnath Das-ramnath Das - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1930Cal623,129Ind.Cas.189
Appellant(Mahant) Murlidas
RespondentBaijnath Das-ramnath Das
Excerpt:
- .....to him of the money in the hands of the sheriff. thereupon, the present respondent applied to the learned judge, attacking that order, and the learned judge set aside that previous order and made the order which is now under appeal before us.2. the learned judge may or may not have intended to decide the question as to the respondent's right to rateable distribution; but the order which he made merely set aside the ex parte order previously made by him in favour of the plaintiff and directed that the official referee should hold an enquiry and report as to who, under the provisions of section 73 of the code, were entitled to share in the same fund and in what proportion; so that the actual order pronounced by the learned judge in no way decided finally or otherwise the rights of the.....
Judgment:

Rankin, C.J.

1. In this case, it appears that the present appellant obtained judgment against his judgment-debtors in 1925 for a certain sum of money. Thereupon, he proceeded to take garnishee proceedings in respect of a sum belonging to the judgment-debtors with the Allahabad bank. In August 1928, the bank was ordered to pay that sum of money into Court, and on 20th August, the bank deposited that money with the Sheriff, Thereupon, certain proceedings were started by the judgment-debtors to restrain the plaintiff from executing his decree. The judgment-debtors set up that it was a fraudulent decree and, for some reason which I do not appreciate, obtained an order stopping the execution proceedings for a period of two months, the money being ordered to remain in the hands of the Sheriff. Within the two months, the judgment-debtors were ordered to institute proceedings to have the fraudulent decree set aside. As a matter of fact, they never instituted any such proceedings. Then, on 24th August, some days after the money had been received by the Sheriff, the respondent before us brought a suit on three promissory notes and made an application for attachment before judgment of this money in the hands of the Sheriff. He got an order for attachment before judgment on 30th August and on 13th September, he appears to have obtained an ex parte decree. On this, he proceeded to levy execution, getting an order for execution on 27fch November. On 29th November the plaintiff applied in his suit and got an order for payment out to him of the money in the hands of the Sheriff. Thereupon, the present respondent applied to the learned Judge, attacking that order, and the learned Judge set aside that previous order and made the order which is now under appeal before us.

2. The learned Judge may or may not have intended to decide the question as to the respondent's right to rateable distribution; but the order which he made merely set aside the ex parte order previously made by him in favour of the plaintiff and directed that the Official Referee should hold an enquiry and report as to who, under the provisions of Section 73 of the Code, were entitled to share in the same fund and in what proportion; so that the actual order pronounced by the learned Judge in no way decided finally or otherwise the rights of the respondent and the appellant inter se. The minute of the proceedings before the learned Judge is to this effect:

Order for rateable distribution. Counsel certified. Previous for payment out sat aside.

3. It appears to me that, whether or not the learned Judge was of opinion that the present respondent was likely to succeed before the Official Referee in establishing his claim to rateable distribution he did not finally decide that point. As the matter however is a complicated one and has been argued before us, I propose to state my opinion on the question. As the matter will have to be decided by the Official Referee, it is just as well to give him what assistance we can.

4. It is quite clear that this money was received by the Sheriff on 20bh August, Under the provisions of the garnishee order, it is clear that the person, who is indebted to the judgment-debtor, is required to show to the Court why h(r) should not pay or deliver into Court the debt due from or the property deliverable by him to such judgment-debtor and if he does not do that and ia adjudged to be liable so to do, then an order is made upon which execution can be taken. I have no doubt that when this money was paid on 20th August to the Sheriff, that money was paid into Court and was 'assets held by the Court' within the meaning of Section 73 of the Code. Now, a contention-has been raised before us to this effect:

that although there was no application for execution of the respondent's decree before 27th November, nevertheless, under Section 73, the respondent is in time within the meaning of the words:

before the receipt of such assets made application to the Court for execution.

5. It has been contended before us that as the judgment-debtor's procedure resulted in the Sheriff being debarred from paying the money to the Account and General's account with the bank the Court never received the money and consequently, from the point of view of this case, you have assets held by the Court before the Court has received the money. In my opinion that is a plain misconstruction of Section 73 which contemplates the Court receiving certain assets and then proceeding to hold them. In my judgment the Court received these assets when the assets were paid to the Sheriff on 20th August. That being so it is manifest that no attachment before judgment that could be. obtained after that date in a proceeding between the respondent and the judgment-debtors could takeaway from the execution creditor the rights that he had under Section 73 of the Code or otherwise. In this case it would appear that apart from the respondent there was no other person, who had applied for execution of any decree with twelve years of the material date. Therefore, it is perfectly plain in my judgment, that in the end the respondent has got no case at all for interfering with the execution that has been taken out by the present appellant.

6. Having given that opinion upon the facts, as they are before us, I have now to consider the proper form of the order. It is reasonably clear that the right of appeal to us depends upon Clause 15, Letters Patent and whether or not the decision of the learned Judge is a judgment depends upon whether or not, so far as he is concerned, he finally decided the rights of the appellant and the respondent as regards this question of rateable distribution. In my judgment, having regard to the form of the order which is drawn up it is not possible for us to say that he finally decided their rights.

7. This appeal must, I think, be formally dismissed, both on the ground that it is incompetent and also, apart from that, on the ground that the appellant is not able to make out any grievance against the order so as to show that it is wrong. In the circumstances, however, there will be no order as to the costs of this appeal.

C.C. Ghose, J.

8. I agree.


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