Murugappa Chettiar vs Palaniyappa Chetty

Phillips, J.—Under Order XXI, Rule 89, the money paid into Court is (a) & sum for payment to the purchaser and (b) a sum for payment to

the decree holder. It is contended for petitioner that the Subordinate Judge is wrong in holding that the latter sum is available for rateable

distribution. The only question is whether the money paid into Court for payment to the decree-holder can be deemed to be ""assets held by the

Court"" within the meaning of Section 73 of the Code of Civil Procedure. In Hari Saha v. Faizlar Rahman 18 Ind. Cas. 839, it has been held that it

cannot and in Sorabji v. Kala Raghunath 12 Ind. Cas. 911, it has been held that money paid under Order XXI, Rule 55, to set aside an attachment

is not available for rateable distribution. The existence of a practice to the contrary in Madras alleged by the Subordinate Judge does not appear to

be supported by any reported oases and the Subordinate Judge must apparently have relied on his personal knowledge of the practice. However

in Kasthuri Aiyangar v. Arunachelarn Chettiar 34 Ind. Cas. 350: (1916) 1 M. W. N. 195, a Bench of this Court remarked that if a payment had

been made u/s 310A of the'' CPC of 1882 (corresponding to Order XXI, Rule 89, of the new Code) that money could not be rateably

distributed. I entirely agree with this statement and the decisions in the Calcutta and Bombay cases. It appears to me that if the sum paid under

Order XXI, Rule 89 (b), can be deemed to be assets held by the Court, the amount paid under Order XXI, Rule 89 (a), would equally be assets

liable to rateable distribution. The amounts are, however, paid in for a specific purpose and are held by the Court solely for that purpose. The

petition is accordingly allowed with costs throughout'' and petitioner will be entitled to the whole amount paid in.