Raghunandan Prasad Singh vs Bhagwat Sahay and Others

Das, J.—The material facts are these. On the 14th April 1909, Tikait Chandi Pershad obtained a decree for recovery of possession of a property and also for the ascertainment of mesne profits against the Maharaja of Gidhaur. On the 14th September 1920, a decree was passed by the Court below for nearly a lakh of rupees as mesne profits against the Maharaja of Gidhaur. On the 2nd October 1920, the decree-holder assigned his decree to the Petitioner. Thereafter the Petitioner applied to have his name substituted in the record of the suit in the place of Tikait Chandi Pershad. The first Court refused the application on the ground that the Maharaja of Gidhaur had appealed against the decree of the 14th September 1920, to this Court. This Court added the Petitioner as a party Respondent to the appeal. On the 4th June 1923, the High Court practically dismissed the appeal of the Maharaja of Gidhaur against the decree of the 14th September 1920. On the 16th April 1924, the Maharaja of Gidhaur deposited the decretal amount of Rs. 71,122 to the credit of Tikait Chandi Pershad. The Opposite Party represented by Mr. Naresh Chandra Sinha and Mr. Atul Krishna Ray attached the decree obtained by Tikait Chandi Pershad as against the Maharaja of Gidhaur on the 7th October 1920, on the 9th October 1920, and on the 5th July 1923, and the question now arises whether the Petitioner as the assignee is entitled to an order giving him liberty to withdraw the sum of Rs. 71,122 from Court.

The attaching creditors have obtained decrees against Tikait Chandi Pershad and they claim that by virtue of the decree of this Court, directing the Maharaja of Gidhaur to pay a definite sum of money to Tikait Chandi Pershad, they are entitled to attach the interest of Tikait Chandi Pershad in the decree given to him by this Court.

The learned Subordinate Judge relying upon a decision of the Madras High Court in V. Thiruvengadam Pillai v. Doridla Subbiah [1912] 11 M.L.T. 144 had disallowed the claim of the assignee and the assignee has presented this application in this Court as against the order of the learned Subordinate Judge.

In my opinion, the order of the learned Subordinate Judge is erroneous. I am informed that it is the case of the Opposite Party that the assignment in favour of the Petitioner was not a bona fide assignment but that it was intended to defeat the rights of the creditors of Tikait Chandi Pershad.

Now this matter has not been gone into by the learned Subordinate Judge. I have no doubt whatever that if the Opposite Party can establish their case that the assignment was not bona fide, they are undoubtedly entitled to recover the sum deposited in Court to the credit of Tikait Chandi Pershad. But this is not the basis of the decision of the learned Subordinate Judge. He has proceeded on the hypothesis that the assignment was a perfectly proper one and the question arises whether on that hypothesis the Opposite Party were entitled to an order in their favour from the Court. The dates which I have given show clearly that the assignment in favour of the Petitioner was prior in date to the attachments made by the Opposite Party. Having assigned the benefit of the decree obtained against the Maharaja of Gidhaur to the Petitioner, Tikait Chandi Pershad could no longer have disposed of that interest afterwards; nor could he have claimed any benefit under that decree after the date of the assignment.

The question then arises, was the attachment made by the Opposite Party good in the circumstances of the case? Section 60 of the CPC deals with the matter and it clearly lays down that only those properties are liable to attachment which belong to the judgment-debtor, or over which or the profits of which he has a disposing power which he may exercise for his own benefit.

Now, as I have said, the decree-holder had prior to the dates of the attachment parted with all the interest that he had in the subject-matter of the decree; in other words he had no disposing power over the decree after the date of the assignment, nor could he have exercised a disposing power over the subject-matter of the decree for his own benefit.

The point has been debated in various cases in England--it is not necessary for me to deal with those cases; it is sufficient for me to refer to a passage in the 14th Volume of Halsbury''s Laws of England. The passage will be found at p. 93 and is as follows:

"The debt," that is to say, the debt which is sought to be attached "must be one which the judgment-debtor could himself enforce for his own benefit; for the creditor acquires no larger rights than those of the debtor. If, therefore, the debt is due to the, judgment-debtor in the capacity of a trustee only, or if he has parted with the debt by assigning it even though he has reserved power to himself to revoke the assignment, it cannot be attached.

This, in my opinion, is exactly what the CPC provides in Section 60. With all respect, I am unable to agree with the view taken by the Madras High Court in V. Thiruvengadam Pillai v. Doridla Subbiah [1912] 11 M.L.T. 144 upon which the learned Subordinate Judge has relied for his decision in this case. If it were open to me to deal with this question on the merits, I would have no hesitation in setting aside the order of the learned Subordinate Judge.

But then the question arises whether this Court ought to invoke its revisional jurisdiction in a case of this nature. Before I exercise my power u/s 115 of the Code, I must be satisfied that the learned Judge in the Court below has either usurped a jurisdiction which did not belong to him or declined a jurisdiction which he should have exercised, or that in exercising his jurisdiction he has acted illegally and with material irregularity. Clearly the question was for the learned Subordinate Judge to decide and he has decided it, and in deciding it, he has followed a decision of the Madras High Court which is directly in point. It is quite true that I take a different view, but that is not to say that it was not open to the learned Subordinate Judge, to follow a decision of the Madras High Court. That being so, it is quite impossible for this Court to interfere with the order passed by the learned Subordinate Judge in this case. The Petitioner has clearly his remedy at law and he ought to pursue his remedy at law.

For the protection of the fund, however, we direct that this fund should lie in Court for three months. If any suit is filed respecting this fund and an injunction obtained, the Subordinate Judge will act in accordance with the terms of the injunction; but if no injunction is obtained respecting this fund, within three months from the date of this order, the attaching creditors will be entitled to withdraw this fund. We dismiss this application but make no order for costs.

Adami, J.

I agree.