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Madan Mohan Dey Vs. Bishnupada Dey - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1921Cal580,64Ind.Cas.780
AppellantMadan Mohan Dey
RespondentBishnupada Dey
Excerpt:
civil procedure code (act v of 1908), order xxi, rule 53 - execution of decree by attachment of another decree--executing decree-holder representative of attached decree-holder--sums deposited in respect of attached decree operate as satisfaction of decree sought to be executed--interests, ceasing of. - .....for sale in enforcement of a mortgage against; c. a attaches in execution of his own decree the decree held by b against c. c from time to time brings into court sums of money for satisfaction of the decree held against him by b. the sums deposited in court, it is not disputed, operate, from their respective dates, as partial satisfaction of the decree as between b and c. the question in controversy is, whether the sums so deposited operate from their respective dates as partial satisfaction also of the decree held by a against b. the appellant (a) argued in the court below that this question should be answered in the negative and that interest should run on the decree held by a against b not only up to the dates of the deposits made by c in satisfaction of the decree held by b.....
Judgment:

1. This is an appeal against an order in execution proceedings, which determines in substance that the decree has been satisfied by the deposits made in Court on different dates.

2. The question in controversy may be formulated concisely. A holds a decree for money against B. B holds a decree for sale in enforcement of a mortgage against; C. A attaches in execution of his own decree the decree held by B against C. C from time to time brings into Court sums of money for satisfaction of the decree held against him by B. The sums deposited in Court, it is not disputed, operate, from their respective dates, as partial satisfaction of the decree as between B and C. The question in controversy is, whether the sums so deposited operate from their respective dates as partial satisfaction also of the decree held by A against B. The appellant (A) argued in the Court below that this question should be answered in the negative and that interest should run on the decree held by A against B not only up to the dates of the deposits made by C in satisfaction of the decree held by B against C, but also up to the date when A withdraws the sums from Court. The Subordinate Judge has overruled this contention and has held that interest must be taken to have ceased on the deposits, on the respective dates, not merely in respect of the decree between B and C but also with regard to the decree between A and B.

3. The solution of the problem depends upon the true construction of Order XXI, Rule 53 of the Civil Procedure Code. Sub-Rule (1) provides that where the property to be attached is a decree, either for payment of money or for sale in enforcement of a mortgage or charge, the attachment shall be made (a) if the decree was passed by the same Court, then by order of such Court, and (b) if the decree sought to be attached was passed by another Court, then by the issue, to such other Court, of a notice by the Court which passed the decree sought to be executed requesting such other Court to stay the execution of its decree, unless and until (i) the Court which passed the decree sought to be executed cancels the notice, or (ii) the holder of the decree sought to be executed or his judgment debtor applies to the Court receiving such notice to execute its own decree. Sub-Rule (2) then provides that where a Court makes an order under the preceding sub-rule it shall, on the application of the creditor who has attached the decree of his judgment debtor, proceed to execute the attached decree and apply the net proceeds in satisfaction of the decree sought to be executed. Sub Rule (3) finally provides that the holder of a decree sought to be executed by the attachment of another decree of the nature specified in sub rule (i) shall be deemed to be the representative of the holder of the attached decree and to be entitled to execute such attached decree in any manner lawful for the holder thereof. The inference deducible from Sub-Rules (2) and (3) is that the proceeds are to be applied in satisfaction as well of the decree attached as also of the decree sought to be executed. This fits in with the view that the holder of the decree sought to be executed by attachment of the other decree is in law the representative of the holder of the attached decree; in other word, the payment made by C, so far as C is concerned, for satisfaction of the decree held against him by B, becomes forth with available to A, as the representative of B, for the satisfaction of the decree held by A against B. If the contrary view were adopted, B might indeed have a legitimate grievance. B might contend with reason that if he had been left alone to execute his decree against C and had not been impeded by the intervention of A, he might have realised forthwith the sums brought into Court by C and made them over to A in satisfaction of' the decree held by A against him. In our opinion, it is in harmony with the provisions of Rule 53, as also with the principles of justice, equity and good conscience, to hold that the monies brought into Court by C, from time to time, operate as satisfaction, pro tanto, of both the decrees. It follows accordingly that interest ceases to run not merely under the decree held by B against C, but also under the decree held by A against B from the dates of the respective deposits. This is in substance the view taken by the Subordinate Judge, and it is not disputed that, on this basis, the account made up by the Court below is not open to objection.

4. The result is that the order of the Court below must be affirmed and this appeal dismissed with costs. We assess the hearing fee at one gold mohur.


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