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Hongkong and Shanghai Banking Corporation Vs. Paresh Lal Roy - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1939Cal485
AppellantHongkong and Shanghai Banking Corporation
RespondentParesh Lal Roy
Cases ReferredVelchand Chhaganlal v. Musson
Excerpt:
- .....21, rule 48 to the effect that the intention was to make an exception from the rule relating to rateable distribution. thirdly, i think it quite clear from our rules that rateable distribution is recognized as applying to attachments of salary: see rule 41, ch. 17.3. i now come to the question of procedure, equally important, and must make clear what i consider to be the correct procedure. it is complicated, but so long as the principle of rateable distribution applies it is necessary, and this case and others with which i have had to deal, convince me that it is unsafe to depart from it. i am not suggesting in this case that the application was not perfectly bona fide. i have no doubt that it was, but an application for payment out may be made under ch. 17, rule 37 and ex parte only.....
Judgment:
ORDER

Ameer Ali, J.

1. This is an application for payment out by the Hongkong and Shanghai Banking Corporation made in Chambers on 8th March 1938. I dealt with the matter in the usual rather hurried way, and asked the office to check. The certificate annexed (Annexure B to the petition) states that there is no attachment affecting the sum in the hands of the Registrar. It is signed by Mr. Collet as Registrar. The office quite rightly sent the matter back to me. The certificate (Ex. B) is not the Registrar's certificate. It happens to be signed by Mr. Collet as 'Registrar' because owing to our system of doubling, Mr. Collet looked at with one eye is the 'Accountant General'; looked at with the other he is the 'Registrar'. This certificate, technically, is the 'Accountant-General's certificate. It happens to be signed by Mr. Collet as 'Registrar' for a technical reason, the funds still being apparently in the 'Registrar's account'. This matter will become more plain when I deal with the matter of procedure. When the matter came back to me on 9th May and I had the benefit of Mr. Dey's very complete and ingenious argument, the two other certificates were available. I refer to what is really the Registrar's certificate, and the Sheriff's certificate. The Registrar's certificate showed five applications for attachment including the one by the Hongkong and Shanghai Banking Corporation.

2. The gist of Mr. Dey's argument will appear from the note dictated by me at the time, which I annex. Shortly put, his point of principle was that Order 21, Rule 48 makes salary unattachable if it is already under attachment by reason of an order under Order 21, Rule 48. Therefore other applications pending the attachment are of no effect. As a matter of practice he contended that the persons whose applications appear in the Registrar's certificate must not be deemed to have valid and subsisting attachments, apart from the question of principle, because for the most part their decrees have been transferred to other Courts for execution. I expressed a view on both points, and I was of opinion that the case decided in Velchand Chhaganlal v. Musson (1912) 14 Bom. L.R. 633 was correct. It was out of respect for Mr. Dey's argument, and from a desire to enquire from the office as to what had previously taken place that I reserved orders. I made such enquiry and Mr. Dey was correct in stating to me that the view put forward by him had, at any rate in a number of instances, been accepted by the office. I discussed the matter of principle and practice with the Master, who agrees with the view which I now express. First, with regard to the question of principle: I have now still less doubt that the view accepted in Bombay is correct, shortly for the following reasons; First, that Order 21, Rule 48 cannot override the substantive provision in the earlier portion of the Code, Section 73. Secondly I draw no inference from Order 21, Rule 48 to the effect that the intention was to make an exception from the rule relating to rateable distribution. Thirdly, I think it quite clear from our rules that rateable distribution is recognized as applying to attachments of salary: see Rule 41, Ch. 17.

3. I now come to the question of procedure, equally important, and must make clear what I consider to be the correct procedure. It is complicated, but so long as the principle of rateable distribution applies it is necessary, and this case and others with which I have had to deal, convince me that it is unsafe to depart from it. I am not suggesting in this case that the application was not perfectly bona fide. I have no doubt that it was, but an application for payment out may be made under Ch. 17, Rule 37 and ex parte only where the Registrar's certificate properly so called showed no prior applications for attachment. From Rule 39 it is quite clear that such an application must, no less than an application for rateable distribution, have attached to it the three certificates mentioned in Section 39, namely the 'Accountant-General's' certificate, (which was attached to the petition in this case), secondly, the 'Registrar's' certificate subsequently attached, and, thirdly, the 'Sheriff's' certificate which in this case is unimportant. Unless the certificate of the Registrar shows blank, no application for payment out ex parte can be made under Rule 37. Where it is not blank the applicant must apply for rateable distribution under Rule 38. In such case notice, unless dispensed with by the Court, must be given to all persons whose names appear in the Registrar's certificate. It is only when this is done that the applications for attachment made by those other persons can be challenged. The Registrar's certificate is intended, according to our practice, to show subsisting attachments. If the claim had been satisfied the Registrar's certificate should not show the attachment. On the other hand the fact that there has been a particular decree which has been transferred to another Court does not affect the matter for the purpose of the certificate, and for purpose of rateable distribution it remains a subsisting application for attachment. When the application is heard on notice to the applicants for attachment, these questions can be gone into. The object of returning the application for attachment under Order 21, Rule 48 is so that these matters can be gone into.

4. My view therefore on both points is as follows: rateable distribution applies to attachments of salary, notwithstanding what has been done by this Court and the contentions that have been put forward on this application. Secondly, the procedure laid down in the rules must be followed. I agree that it is complicated. So long as the principle of rateable distribution is accepted, the machinery is necessary. I direct therefore that the application is renewed on notice on the persons mentioned in the Registrar's certificate other than Fulin Krishna Roy. The application will be treated as an application under Rule 38, Chapter 17.


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