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Golap Khan Vs. Bhola Nath Marik and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported in7Ind.Cas.481
AppellantGolap Khan
RespondentBhola Nath Marik and ors.
Cases ReferredBashi Bibi v. Hanif
Excerpt:
land acquisition act (i of 1894), section 54 - reference for apportionment--interest of one of claimants attached before reference--compromise amongst claimants--abandonment of claim by claimant whose interest teas attached--party--attaching creditor, whether should be made party in apportionment proceedings--dismissal of his application--appeal, whether lies--civil procedure code (act v of 1008), sections 64, 115, order xxiii, rule 10. - .....he made a reference to the civil court. the dispute was amongst three persons, one of whom amulya charan marik, had put forward a claim to a third share of the compensation money on the 30th june 1909. before the reference was made by the collector, the present petitioner had obtained an attachment upon the fund in court in so far as it represented the interest of amulya charan marik. after the reference and during the pendency of the proceedings in the civil court, on the 4th september 1909, amulya charan marik put in a petition of compromise by which he abandoned his claim to the compensation money. the petitioner thereupon appeared and applied to be made a party to the proceedings. his allegation was that the attachment obtained by him affected a sum [of rs. 665-5 out of the.....
Judgment:

1. We are invited in this rule to set aside an order by which the Court below has declined to investigate the claim put forward by the petitioner in an apportionment case under the Land Acquisition Act. The circumstances under which our interference is sought are not disputed. On the 21st August 1909, the Collector made his award and as there was a dispute as to the apportionment of the Compensation, he made a reference to the Civil Court. The dispute was amongst three persons, one of whom Amulya Charan Marik, had put forward a claim to a third share of the compensation money on the 30th June 1909. Before the reference was made by the Collector, the present petitioner had obtained an attachment upon the fund in Court in so far as it represented the interest of Amulya Charan Marik. After the reference and during the pendency of the proceedings in the Civil Court, on the 4th September 1909, Amulya Charan Marik put in a petition of compromise by which he abandoned his claim to the compensation money. The petitioner thereupon appeared and applied to be made a party to the proceedings. His allegation was that the attachment obtained by him affected a sum [of Rs. 665-5 out of the share which belonged to Amulya Charan Marik. This application was opposed by the other claimants in whose favour Amulya Charan had surrendered his claim. The Land Acquisition Judge held that the petitioner bad no locus standi and dismissed his application. This was followed by an order drawn up in accordance wit h the petition of compromise, which had been accepted by the original claimants. We are now invited to set aside this order on the ground that the petitioner was entitled to be heard and that he ought to have been given an opportunity to establish that Amulya Charan had a well-founded claim to a share of the compensation money. In answer to this contention, it has been argued that the rule ought to be discharged: because the order is appealable. On the merits it has been contended that the petitioner has no locus standi, and that in any event as he has his remedy by a regular suit, no relief ought to be afforded to him in these proceedings.

2. In our opinion these contentions are not well-founded and must be overruled. In so far as the preliminary objection is concerned, it is not necessary to deal with it at any length. Reliance has been placed upon Section 54 of the Land Acquisition Act to show that the order is appealable as a decree. This contention clearly cannot be substained. Section 54 deals with orders made between parties to the proceedings before the District Judge. The petitioner before us was never made a party to the proceedings. In fact, his application to be made a party was dismissed on the ground that he had no. locus standi. It was next suggested that the application might be deemed as made under Order XXII, Rule 10, of the Code of Civil Procedure of 1908, and that treated as an order under that Rule it was appealable. It is clear, however, that Rule 10 has no application, because it deals with cases of assignment, creation or devolution of any interest during the pendency of a suit. Here, if the ease of the petitioner is well-founded, the interest which he claims was acquired by him before the reference was made by the Collector. The petitioner was entitled to be added as a party not under Rule 10 but on the ground that he was a person interested in the subject-matter of the litigation and that no order ought to have been made for its disposal without any opportunity afforded to him to establish his claim. The order, therefore, is clearly not appealable. But even if it were conceded that the order was open to appeal, it is clear that there is no substance in the objection because it would be open to this Court to treat the application as a memorandum of appeal, as was done by a Full Bench of this Court in the case of Mahommed Wahid-ud din v. Hakiman 25 C. 757 : 2 C.W.N. 529. The preliminary objection must, therefore, be overruled.

3. We must next deal with the case on the merits. The learned Vakil for the opposite party has contended that the effect of an attachment of the fund in Court was not to create any title in favour of the petitioner and that consequently the petitioner is not entitled, assuming that his judgment-debtor had any interest in the compensation money, to enforce his claim in the present proceedings. In support of this view, reliance has been placed upon the decision of the Judicial Committee in the case of Moti Lal v. Karrab-ul-din 24 I.A. 170 : 25 C. 179 : 1 C.W.N. 639, where their Lordships observed that an attachment under Chapter XIX of the Code of 1882 merely prevents an alienation and does not give title. Reference has also been made by the learned Vakil for the opposite party to the case of Norton v. Yates (1900) 1 K.B. 112 : 75 L.J.K.B. 252 as an authority for the proposition that it cannot be affirmed as an inflexible rule of law that the moment an order of attachment is served on a Garnishee the property in the debt due from him is absolutely transferred from the judgment-debtor to the judgment-creditor. It was observed in the case mentioned that the real effect of such an order was to entitle the judgment-debtor to tell his creditor that he was not going to pay him but would pay the man who had obtained the Garnishee order. This position need not be disputed. But the question in controversy between the parties before us really is, whether the compromise effected by the claimants was not substantially in contravention of the provisions of Section 64 of the Code of 1908. That section provides that where an attachment has been made, any private transfer or delivery of the property attached or of any interest therein and any payment to the judgment-debtor of any debt, dividend, or other monies contrary to such attachment shall be void as against all claims enforceable under the attachment. We must assume for the purposes of the present Rule that Amulya Charan Marik was really interested in a third share of the compensation money as alleged by the petitioner. If he had such interest, it is obvious that the effect of the compromise was to transfer the interest which he possessed to the other claimants; such transfer after the attachment and the subsequent delivery of the funds pursuant thereto were clearly contrary to the provisions of Section 64. It follows consequently that the Court below ought not to have given effect to such compromise, because, under Order XXIII, Rule 3, of the Code of 1908, the Court must determine whether the agreement or compromise was lawful before effect is given to it. The position, therefore, is obvious that the claim of the petitioner ought not to have been ignored; he should have been made a party and his claim properly investigated. We may add that it has not been disputed, and in view of the decisions of this Court in Promotha Nath v. Rakhal Das 11 C.L.J. 420 : 6 Ind. Cas. 546, Dwarka Nath v. Kisori Lal 11 C.L.J. 423 : 14 C.W.N. 703 : 6 Ind. Cas. 549, Bashi Bibi v. Hanif-ud-din 6 Ind. Cas. 570, it cannot be successfully, disputed that if it is held that the apportionment question should not have been disposed of without opportunity afforded to the petitioner to establish his allegations, this Court has ample power to set matters right.

4. The result is that this' Rule is made absolute; the order of the Land Acquisition Judge made on the 17th January 1910 discharged and the case remitted to him in order that the claim of the present petitioner may be investigated. If it is determined ultimately that the claim is well-founded, the present opposite party who has taken out the money pursuant to the erroneous order now set aside, must be compelled to refund the same. The petitioner is entitled to his costs of this Court. We assess the hearing fee at two gold mohurs.


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