M.S. Venkataraman and Others vs V. Nataraja Iyer

K. Veeraswami, C.J.—These appeals under the Letters Patent raise a question of limitation. The final decree in the suit for partition was

made on 25th February, 1957, and it was amended by a further order dated 25th July, 1958. Under Clause (3) of the final decree the appellants

were entitled to a moiety of the sale proceeds of plaint schedule items 5 and 6 which were in deposit in Court. They were similarly declared by the

final decree to be entitled to a moiety of the sale proceeds of item 8 covered by Clause (4) of the final decree. This amount was also in Court

deposit. In October, 1963 the appellants took out an execution petition for payment out of a sum of Rs. 4,639-6-0 out of the moneys lying in

deposit. This sum had been decreed in favour of the plaintiffs and against the first defendant towards mesne profits from January, 1943 to

November, 1951. The question was whether this application was in time. The executing Court decided the question in favour of the appellants,,

but, Ismail, J., on appeal, reversed the order and found that the application was out of time. This was upon the view that the appellants'' earlier

application, I.A. No. 426 of 1960, which was ordered on 14th November, 1962, was not a step-in-aid of execution. The appeal is from the order

of the learned Judge.

We are of the same view as Ismail, J. The final decree itself specifically stated that the appellants were entitled to a moiety of the proceeds of

sale of plaint schedule items 5,6 and 8. The proceeds being a deposit in Court, and, half of the same having been'' declared to be the share of the

appellants, all that was necessary for them was to apply for payment out of the same. It seems to us that no process of execution was required for

that purpose. Whether an application for payment out of money in deposit in Court can be regarded as an execution petition and a step- in-aid will

depend upon the particular circumstances. Where the money in deposit was not realised in execution, but came into Court deposit on conversion

of the property which is sought to be divided, and the decree as finally made declared one of the parties to be enisled to that amount or a part of it,

the process of execution is hardly called for is necessary, and, in that view, we think that an application for payment out would not be regarded as

an execution petition and therefore a step-in-aid.

Thangi Shettithi Vs. Duja Shetti and Others, , related to payment out, on application filed by a decree-holder, of money which had been

deposited as a condition for setting aside an ex parte decree. It was held that as an order of the Court was necessary to make the sum of Rs. 500

available for payment towards the decree amount the application was one in execution of the decree itself and gave the plaintiff a fresh starting

point under Article 182 (5) of the Limitation Act. It may be seen that the money in deposit in that case did not belong to the plaintiff decree-holder

and he could only reach it in execution. In the instant case, the final decree declared, as we said, that the appellants were entitled to a moiety of the

sale proceeds in deposit in Court. The test, as it seems to us, is not whether the order of Court is required before the decree-holder would get at

the money in deposit but whether the money in Court deposit or any part of it belongs to the decree-holder. In our view the money in deposit in

Court to which a decree-holder is entitled is not to be equated to property which the decree holder is entitled to recover especially when it is not in

custodia legis.

In T. Sankara Menon and Others Vs. T.V. Sundara Aiyar, , it was noticed that a long line of cases had taken the view that an application by a

decree-holder for the payment to him of money lying in Court and obtained in execution of the decree was a step-in-aid of the execution. This

principle was extended by the Full Bench in that case to an application by a decree-holder for delivery of possession of the Immovable property

purchased by him in a sale in execution of a decree as a step-in-aid of the execution of the decree. In our view the ratio of this decision is

inapplicable to an application for payment out of a moiety of the sale proceeds of a property in Court deposit which has been declared to belong

to the share of the decree-holder applicant for payment out. A learned Single Judge of this Court in Kannappa Chettiar v. Manickam Chettiar

(1957) 2 M.L.J. 105, in the course of the judgment would appear to be inclined to the view that even in such a case, the application could be

regarded as in execution and as a step-in-aid. But, the decision in that case really turned on the fact that the application for payment out also

related to sums in deposit to which the applicant was, by declaration of the decree, not entitled, but, which he could reach only by execution.

On that view of the matter the appeals are dismissed with costs.