Ramasami Iyer and Another vs Vedambal Ammal

Madhavan Nair, J.—The petitioners are the decree-holders in Small Cause Suits Nos. 747 of 1928 and 1021 of 1927, of the Sub-Court,

Tuticorin who obtained decree in those suits against the same judgment-debtor. The respondent obtained a preliminary decree in O.S. No. 8 of

21, of the Sub-Court, Mayavaram, for possession and mesne profits against the same judgment-debtor under Order 20 Rule 12, Civil P.C.

declaring her right to the properties and ordering an inquiry into mesne profits. In execution of his decree in S.C.S. No. 1021 of 1927, money in

the hands of the garnishee was attached and deposited in Court to the credit of the decree-holder in S.C.S. No. 1021 of 1927 on 2nd December

1929, In E.P.R. No. 19 of 1925 the responded had applied for attachment of the very amount under Order 21, Rule 42, Civil P.C., and the

attachment had been ordered on 18th March 1925. On 14th December 1929 she filed M.A. No. 435 of 19291 for the ascertainment of mesne

profits. On 25th January 1930 she filed the application out of which this appeal arises, M.A. No. 48 of 1930, for rateable distribution, under

Sections 73 and 151, Civil P.C. of the amount attached in respect of future profits which have to be as certained hereafter and for which she had

already filed M.A. No. 435 of 1929. The appellants who had also applied for rateable distribution opposed the respondent''s application on the

ground that Section 73, Civil P.C., is inapplicable inasmuch as she had not made her application to the Court before the receipt of assets and there

was no application from her ""for execution of the decree for the payment of money,"" as required under the section. The latter objection is based on

the ground that an inquiry into mesne profits being a proceeding in the suit itself under Order 20, Rule 12, even though under Order 21, Rule 42, a

decree-holder for mesne profits may obtain an attachment before the amount is ascertained, still to enable him to claim the benefit u/s 73 he must

have filed a petition for execution after the amount is ascertained. These objections were overruled by the lower Court and rateable distribution

was ordered in favour of the respondent.

The above objections have again been pressed before us. It is clear that if E.P.R. No. 19 of 1925, the application for attachment under Order

21, Rule 42, can be considered to be an application for execution, then both the objections of the appellants are answered. Order 21, Rule 42

says that

Where a decree directs an enquiry as to means profits...the property of the judgment-debtor may, before the amount due from him has been

ascertained, be attached, as in the case of an ordinary decree for the payment of money.

The attachment in the present case was obtained by the respondent under this rule. In Vararaghava v. Varada (1882) 5 Mad. 123, it was held

under the old Code that the bolder of a decree for unascertained mesne profits who has applied to the Court to ascertain the amount thereof and

to attach immovable property u/s 255 (corresponding to Order 21, Rule 42 of the present Code) comes within the ipurview of Section 295

(corresponding to the present Section 73, Civil P.C.) and is entitled to share rateably with the attaching creditor in the assets realised. In the course

of the judgment the learned Judges pointed out that

the decree held by the petitioner for mesne profits was a decree for money. Although the amount was still uncertain, the petitioner had applied to

the Court to execute that decree.

It is argued for the appellants that as under the old Code the ascertainment of mesne profits was a proceeding in execution, the application in

that behalf was sufficient to satisfy the requirements of Section 73; while under the present Code the ascertainment of mesne profits is a proceeding

in the suit itself, (Order 20, Rule 12, Civil P.C.), and therefore unless a petition for execution after the amount of mesne profits has been

ascertained is filed, the respondent cannot apply u/s 73. For the purpose of Section 73 the difference in procedure between the two Codes with

regard to the ascertainment of mesne profits does not necessarily lead to the conclusion that without an application for execution after the

ascertainment of profits rateable distribution cannot be claimed by the respondent. The Code allows under Order 21, E. 42, an attachment to be

made to realise the amount to be ascertained in future ""as in the case of an ordinary decree for the payment of money."" This provision, in our

opinion, treats the attachment as a proceeding in execution of the decree and the application for attachment may well i therefore be treated as one

for execution. It is not unreasonable therefore; to hold that as soon as the amount is ascertained the application made for obtaining the attachment

becomes one for the execution of the decree for the realisation of the ascertained money. In this connexion it may be observed that Rule 42 finds a

place under Order 21, the order relating to the execution of decrees. If the view expressed above is not accepted, it would mean that under the old

Code the decree-holder would under circumstances similar to those appearing in the present case be entitled to obtain rateable distribution, while

he cannot do so under the present Code. In our opinion, there is no justification for such a conclusion. In Mulla''s Commentaries of the Civil P.C.

u/s 73 the following statement of law appears:

A decree for the payment of mesne profits is a ''decree for the payment of money'' within the meaning of this section, notwithstanding that the

amount of mesne profits has not yet been ascertained. The holder of such a decree, who has applied for attachment under Order 21, Rule 42

(Code of 1882, Section 255) is entitled to a rateable distribution with other decree holders under this section;

and the authority referred to for this proposition is Vararaghava v. Varada (1882) 5 Mad. 123, the decision under the old Code we have already

quoted. For the above reasons we hold that under the present Code the respondent can claim rateable distribution u/s 73 Civil P.C. It cannot be

doubted that, in equity the distribution of the assets in this case should abide the passing of the final decree. The respondent was the first to attach

the amount; in question and the delay in passing the final decree should not in our opinion be allowed to stand in the way of her obtaining rateable

distribution. She has made the application u/s 151, Civil P.C., also. We think this is pre-eminently a case for the application of that section. In our

opinion, both u/s 73, and u/s 151, Civil P.C., the respondent''s claim for rateable distribution should be recognized. We confirm the lower Court''s

order and dismiss this Civil Revision Petition with costs.