1. In this matrimonial suit by the husband, the learned Judge on the original side at the first instance gave a decree assessing the damages payable by the co-respondent at Rs. 12,500. That was on 3rd April 1928. The form of the order was to the effect that the petitioner was entitled to the sum of Rs. 12,500 as damages from the said co-respondent and
It is further ordered and decreed that the correspondent do within three weeks from the data hereof pay into Court to the credit of this suit the said sum of Rs. 12,500 to be held until the further order of this Court.
2. The co-respondent did not, in fact, pay into Court, pursuant to that order, the sum of Rs. 12,500. On the contrary, he applied to the Court of appeal, on 17th May 1928, and asked for a stay of execution. By the order of 17th May 1928, he was given a stay of execution and the terms of that order have been insisted upon by Mr. B. K. Ghosh and Mr. A. K. Boy as important for the purpose of the question immediately before us. The , order was in this form:
It is ordered that the execution of the said decree be stayed for three weeks from the date hereof, And it is further ordered that, upon the co-respondent appellant within three weeks from the date hereof depositing with the Registrar of this Court the sum of Rs. 12,500 to be by him invested in Government securities, the execution of the said decree so far as the damages awarded thereby, be stayed until the hearing of the appeal: And it is further ordered that the co-respondent appellant be at liberty to apply to this Court, on proper materials, for stay of execution of the taxed costs under the said decree, pending the hearing of the appeal, if he be so advised.
3. The other directions are not material.
4. Now, the appeal came on in due course and, in August 1928, the judgment of the learned Judge was set aside and the case was remanded for a re-assessment of the damages, due from the co-respondent to the petitioner. On 15th April 1929, my learned brother Buckland, J., assessed the damages at Rs. 750 and he also directed that the co-respondent was to be at liberty to withdraw Rs. 11,750 out of the sum deposited in Court.
5. On 17th May 1929, the receiver in a certain suit in the District Court of Purulia attached the fund in Court in execution of a debt due from the co-respondent. On 20th June, that is, a month after the attachment, the memorandum of appeal from the order of Buckland, J., was presented.
6. On 15th January 1930, this Court on appeal increased the damages awarded by Buckland, J., to the sum of Rs. 6,000. It appears that at or about that time a second attachment at the instance of the creditor now represented before us by Mr. A. K. Roy was made upon the fund. At the hearing of the appeal, when we came to consider the order that should be made for costs and the question whether an order for payment out of this fund should be made in favour of the petitioner-appellant, the existence of attachments was brought to the notice of this Court and this Court issued a rule upon the attaching creditors stating the order which the petitioner-appellant was asking from this Court and the attaching creditors were required to show cause why an order in those terms should not be made for the payment out of this fund in Court to the petitioner or otherwise in his interest.
7. Now the rule indicated four payments which this Court might be disposed to order out of the fund: First of all, that the damages of Rs. 6,000 should be placed to the credit of a separate account to abide by the decision of the Judge on the original side in respect of the settlement, if any, of the damages awarded to the appellant. So far as that is concerned learned Counsel for the attaching creditors before us has not contended that the whole of the Rs. 6,000 damages ultimately awarded to the petitioner should not be satisfied out of the security in Court. The second order, which was mentioned in the rule, was that Rs. 2,825-3-0 should be paid to Messrs. Morgan & Co., for the appellant's costs taxed under the decree.. The third was that Rs. 3354-13-0 should be paid to Messrs. Sanderson & Co.. for the costs of the wife in the Court of first instance and, fourthly, the balance should be paid to the appellant's attorney on account of the costs of the appellant in the appeal as and when taxed. In other words the rule raises the question whether the costs of the husband appellant on the original side and the costs, which he is-liable to pay to his wife on the original side and which the co-respondent has been ordered to refund to the husband, should not be paid and the rest of the fund made answerable for the husband's costs.
8. It is contended for the attaching creditors that, after the Rs. 6,000 has been set aside for damages, no order against this fund should be made which would give the husband appellant his costs thereout in priority to the attaching creditors and it is said that if we look to the nature of the security it will be evident that that security has reference entirely to the husband's claim for damages and is not intended as a provision for the husband's costs at all. It is further pointed out that the co-respondent could have, if he liked, under Buckland, J's , order of 15th April 1929, taken the whole of the balance of Rs. 11,750 out of Court.
9. In my opinion, there are two principles which should govern this case. The first is that the money, which was directed to be paid into Court and to be invested in Government securities, though there is no doubt that the amount was fixed having regard to the sum at which the learned Judge. Costello, J., had assessed the damages, was not money [which was answerable for damages and for nothing but damages. It was a security which was deposited in this Court as a term of the co-respondent getting a (stay of execution in respect of the damages. If the co-respondent had not deposited that sum he would have got no stay of execution at all. Even on depositing it, ha was given no stay as regards the costs.
10. But it is a proposition entirely consistent with this that the security was to be a security to abide by the order of the Court of appeal whatever order it should think fit to make upon any branch of the case. If for example, a further application had been made for stay on security as regards costs, it may very well be that the Court of appeal would, upon further consideration, have given a stay as regards costs without increasing the sum of Rs. 12,500 which it had originally demanded. It may be probable or it may be improbable; but it was within the right of the Court. I see nothing in the form of the order of 'the Court of appeal that in any way conflicts with the language of Clause (c), Order 41, Rule 5 (3), Civil P.C. The security was given for the due performance of such decree or order as would ultimately be binding upon the co-respondent and I have no doubt at all that it would have been in the competence of this Court to direct that the sum of money so deposited, if it was more than sufficient to answer the damages ultimately awarded, should be applied towards payment of the costs. Does it make any difference that in the meantime this fund has been attached at the instance of a creditor of the co-respondent and does it make any difference that my learned brother Buckland's order of 15th April gave liberty to the co-respondent to withdraw the money? In my judgment, it makes no difference at all, provided the security is still there. That security is still in the hands of this Court and it is put there by the co-respondent as a condition of getting a stay of execution. But for that stay of execution, we do not know that the petitioner would not have realized by execution the whole of the money; and, had he done so and afterwards a smaller sum had been awarded as damages it is clear that the petitioner would have been entitled to set off any costs that were given to him against the co-respondent before he could have been made to refund any balance.
11. The second principle is that an attaching creditor in a case of this kind has no higher right than the debtor, whose money he has attached, and the debtor in this case has no right to the money now in Court which would prevent this Court from regarding it as a suitable fund, from which payment should be made for the costs of the appellant.
12. In these circumstances, it appears to me that the order which was contemplated and indicated by the rule which we issued upon the attaching creditors should now be made. But the husband appellant will get no costs of this application against the attaching creditors, who have acted very reasonably in this matter and who have been summoned before this Court not at their own instance but at the instance of the Court. The rule is made absolute, in these terms.
C.C. Ghose, J.
13. I agree.