Narsingh Das Marwari vs Gulab Rai Marwari and another

Wort, J.—This is a rule directed against the order of the Subordinate Judge refusing ratable distribution to the petitioner. The jurisdiction to make the order is conferred by O. 21, Civil P.C., which gives power to the Court to decide all questions of priority and other matters relating to questions of this kind in the executing Court. It is not disputed that the Court has jurisdiction. I mention this matter as the petitioner asks this Court to exercise its revisional powers. In all cases of this kind the question always arises whether the Court has power to exercise its revisional powers in setting aside an order of the Court. In this case not only does that question arise, but I propose to decide whether the learned Judge was right or wrong. Very little need be said about the matter, because in my judgment the point has been finally disposed of by the Privy Council; and the only question which could possibly arise is the application of the principles laid down by the Judicial Committee of the Privy Council on the interpretation of S. 115, Civil P.C.

The proposition broadly stated is that no question of fact or law unless it relates to the question of jurisdiction is open to revision. 1 have stated that proposition in my own words, but the substance of the rule laid down by the Privy Council in authorities which are so well-known has been so often referred to by me and many other Judges that it is really unnecessary to repeat it. There may be of course a decision on a question of fact or law which has been arrived at in such an irregular manner that the Court would be bound to hold that there was material irregularity in the exercise of the jurisdiction. But what is abundantly clear is that no mere mistake of law or fact lays the order of the Judge open to revision by the High Court.

Now it is contended in this case that the Judge has declined to exercise his jurisdiction, because he has taken a wrong view of S. 73, Civil P.C., In my judgment the argument cannot be supported. It is quite immaterial to argue that if the Court does not give the remedy which on one view of the law the petitioner was entitled to then the petitioner would be prejudiced. There must be some finality in the matter and the legislature in its wisdom has placed this matter within the jurisdiction of the Court. I come to this conclusion because I find it impossible to hold that the decision of the Judge is so grossly wrong as to be described as "exercise of jurisdiction with material irregularity." Indeed not only was the decision not grossly wrong, but from many points of view it would be incumbent on this Court to hold that the Judge was right.

It has been argued by Mr. Baldeva Sahay that the finding of the learned Judge that the application was made after the receipt of the assets precluded the Court from granting the relief to the petitioner under S. 73, Civil P.C. There is a great deal to be said for that proposition. But I do not decide the matter on that ground. I decide the case on the first point as to my jurisdiction supported by my view as regards the contentions put forward on behalf of the petitioner as regards the proper construction of S. 73, Civil P.C. The position is this. Broadly stated, a decree-holder is entitled to ratable distribution as regards the assets which are brought into Court by realization of the property in execution, if the applicant makes his application for execution before the assets are received by the Court. The exact wording of S. 73 it is well to note:

Where assets are held by a Court and more persons than one have, before the receipt of such assets, made application to the Court for the execution of decrees for the payment of money passed against the same judgment-debtor and have not obtained satisfaction thereof the assets after deducting the costs of realization shall be Rateably distributed among all such persons.

Now the facts of this case are shortly these. The judgment-debtor had a sum of money in Court to his credit. How that money got there is quite immaterial. It is quite clear that they were not assets within the meaning of S. 73 at the time that it was paid into Court. That much is clear. That is to say the money in Court was not the proceeds of an execution going to be distributed to the decree-holders (I would put it in that way). After this sum had actually been put into Court, the respondent applied for the attachment of the money; then the petitioner at a later date, in execution of his decree, applied for attachment and now applies for ratable distribution. The view that the learned Judge has taken is this, that in substance it is a question of priority. S. 73, does not apply, because both applications for attachment were made after the receipt of the property. Now there is a great deal to be said for that point of view for many reasons and that will be seen by the wording of S. 73, itself. I refer to the proposition laid down by the Judge that S. 73 does not apply. The wording of the section which is important in this connexion is:

more persons than one have, before the receipt of such assets, made application to the Court for the execution of decrees.

There are two points of view to be taken, one which is represented by the Full Bench decision of the Madras High Court in Visvanadhan Chetty v. Arunachelam Chetti, 1921 Mad 218 = 60 I C 302 = 44 Mad 100 (F B). The view taken in that case applying it to the facts of this case was shortly this, that when the money was paid to the credit of the judgment-debtor, it was not a receipt within the meaning of S. 73, The learned Judges in that case took the view that receipt under S. 73 must be a receipt in the process of an execution, and they proceeded to hold the view that until the Court which is in actual custody of the money makes some order such as that the sum of money actually in Court should be paid to the credit of a particular execution case, the money is not a ''receipt'' within the meaning of S. 73, The view followed by the Judge in the Court below in this case was that the, actual physical receipt of the money,'' whether in execution or for whatever circumstances, was a ''receipt'' within the meaning of S. 73, Now it will be seen from the observation of the Judge in the Full Bench case that they held there must be not only an actual receipt but something in the nature of a notional receipt. What is contended for by the learned advocate appearing on behalf of the petitioner here is this, that when, the decree-holder, that is, the respondent made an application for attachment, at some date subsequent to that the Court should have made an order transferring this fund to the account of the first attaching decree-holder (the respondent) and that only then could the money be said to have been received. Up till that time the petitioner was entitled not only to apply to have a ratable distribution or to have an order to that effect. It is admitted in the first instance that there is nothing in the CPC nor in the rules of Court which makes any such order as suggested by the Full Bench decision of the Madras High Court and the learned advocate who appears on behalf of the petitioner, either obligatory or necessary in any sense of the term. In fact the law is without any provision as regards that matter.

Now in this connexion it is important to notice the provisions of the Civil Procedure Code. Attachment of property is dealt with in O. 21 from R. 41 onwards. R. 43 of the order relates to the attachment of agricultural produce. Nothing is to be got from that rule which in any way helps us. R. 46 deals with the attachment of debts not secured by a negotiable instrument, shares, etc., and is not dissimilar in its provision to writs of distringes in England, R. 47 deals with the attachment of shares in movable properties. These rules which I have already quoted are only important in introducing the method by which an attachment is to be effected. Again R. 48, O. 21 deals with the attachment of salaries and allowances. R. 51 is significant. It provides:

Where the property is a negotiable instrument not deposited in a Court, nor in the custody of a public officer, the attachment shall be made by actual seizure, and the instrument shall be brought into Court and held subject to further orders of the Court.

Now had this been a negotiable instrument instead of money, it is quite obvious that the application of R. 51 would have to some extent been unnecessary because the seizure would have been unnecessary as the negotiable instrument was already in Court. Now it is quite obvious in drawing an analogy from that rule that the seizure and the bringing into Court would have been a receipt within the meaning of S. 73, Now what are we to say when the seizure and the bringing into Court becomes unnecessary because the Court is already in custody of the instrument or of the property to be attached. It seems that whatever deduction may be drawn from the rule to which I refer, it is perfectly clear that there is no justification for introducing what I have described as notional receipt. Now Rs. 51 and 52 onwards of O.21 are as I have suggested very significant. The object of the rules is to bring the property to be attached within the custody of the Court, and it is quite clear from the provisions of these rules that when once it is brought there no further action is necessary until it is either realized or if it be a sum of money, paid over to the attaching decree-holder, R. 52 provides:

Where the property to be attached is in the custody of any Court or public officer, the attachment shall be made by a notice to such Court or officer, requesting that such property and any interest or dividend becoming payable thereon, may be held subject to the further orders of the Court from which the notice is issued.

Now the actual receipt would therefore in my judgment appear to be effected by a notice under O, 21, R. 52. The property is already in the custody of the Court and nothing further is required, It is contended by the learned Advocate that the effect of the attachment is not to create any charge or anything of that kind, and therefore this action on the part of the Court transferring the money to the account of the decree holder in a particular execution case becomes necessary. In my judgment that argument is quite unfounded. We can see from the rules and orders to which I have made reference that what is aimed at in each case is that the Court should get the actual custody of the property which is being attached. O. 21, R. 56, deals specifically with the particular kind of property which is attached in this case. This rule provides:

Where the property attached is current coin or currency notes, the Court may, at any time during the continuance of the attachment, direct that such coin or notes or a part thereof sufficient to satisfy the decree, be paid over to the party entitled under the decree to receive the same.

Now it is quite clear, is it not, that until the Court has received the money within the meaning of S. 73 it cannot pay it over. Property held to the account of another fund or a particular person, if it is not affected by the order of attachment in the sense that it is received By the Court in a particular execution case, could not be paid over under O. 21, R 56, That seems in my judgment perfectly clear. Now, is there any justification for the contention that there must be something in the nature of a book transaction or book keeping entry, in the Court where the Court has already come into physical custody of the account. In the CPC there is no justification for it, nor in the rules of the Court, and it seems to me to be an idea introduced merely to give a form of relief on equitable principles to a person who would not otherwise be entitled to that form of relief under the strict interpretation of the rules of law. Shortly stated my view of the matter is, and I say that with great deference to the learned Judges who decided the Full Bench case of the Madras High Court, that from a reading of that part of O. 21 which relates to this matter it is clear that when the order for attachment is made, if there is such a thing as notional receipt that notional receipt takes place and can be nontheless effective merely because there is no particular entry in the books of the Court which entry is not justified by any rule of law or rule of Court. Now there is another aspect of this case, assuming for a moment that this book entry ought to have been made. The learned Advocate on behalf of the petitioner faintly argues that it was necessary for the petitioner to make on application in that regard and he relies on O 21, R. 52 for that purpose, the relevant portion of that rule being.

requesting that such property, and any interest or dividend becoming payable thereon, may be held subject to the further orders of the Court from which the notice is issued.

In my judgment the expression further orders of the Court'' is wide enough to cover any order that the Court may make- It certainly does not justify my holding that a further application by the petitioner was necessary and a further order was necessary formally transferring the money from one account to another. I revert however to the point with which I was dealing. If such an order was to be made, it cannot seriously be contended that it could be made at any other time than when the first attachment took place. If as a matter of practice such book entry by the Court was made, it does not seem to me to make any difference, either by reason of negligence or mere omission, that the order was not made. If it was to be made at any time it was to be made at the time the attachment was made, to repeat myself. Now what is the position? Assuming for a moment that the law requires such a book entry to be made then in this case the respondent would be defeated from having priority merely because of an omission of the Court itself. In my judgment in those circumstances the Court would be bound to hold that the first executing decree holder could not be prejudiced by an omission of the Court. It seems to me that whatever view one takes of this matter, the petitioner fails. I have discussed the matter at some considerable length in order to determine the question, whether it could be said that the decision of the learned Judge in the Court below was so grossly wrong as to be considered that he exercised his jurisdiction with material irregularity. Not only do I not come to that conclusion, but on the whole, if it were necessary in my judgment to decide the point as a question of law, I should be bound to hold that the learned Judge was right. I decide this case therefore on two grounds, first of all that I have no jurisdiction to interfere and secondly that in any event the learned Judge in his view of the law was right. The rule is therefore discharged with costs: hearing fee two gold mohurs.