Ramaswami Aiyar vs Rama Aiyar

It is first argued that the decree for mesne profits reserved to be ascertained in execution is not a decree for money and that therefore

respondent was not entitled to apply u/s 273 for the attachment of the decree in satisfaction of his decree in O. S. No. 388 of 1885.

We are of opinion the courts below were right in disallowing this contention. As observed by Hobhouse J. in Sharoda Moyee Burmonee v.

Wooma Moyee Burmonee 8 W. R 11 with reference to Section 232, Act VIII of 1859, the decree was a decree for money in the sense that it

represented a sum of money to be ascertained hereafter. It was also held, in Viraragava v. Varada I. L. R. 5 M 128, that the holder of a decree

for unascertained mesne profits is of a money decree for the purpose of claiming rateable distribution u/s 295. The first contention therefore must

be disallowed.

It is then argued that as the heir of Ramasami the deceased plaintiff in the suit has not been made a party, the application for execution cannot

proceed. We observe, however, that Seshappayyan has been made a party in the execution proceedings in O. S. No. 388 of 1885 and that the

present proceedings are only a continuation of those proceedings.

As the payment alleged to have been made by appellant to Seshappayyan was, if made bona fide and if the creditor was willing to certify, prior

to the prohibitory order obtained by the respondent, we see no reason why the debtor should forfeit the benefit of the adjustment, inasmuch as the

creditor is not barred from certifying satisfaction by any rule of limitation. We cannot accede to the contention on behalf of the respondent that the

attachment u/s 273 determines the status of the prior execution-creditor as such. It only suspends his right for the limited purpose of enabling his

judgment-creditor to obtain satisfaction. We think therefore that the judge should have recorded a finding on the question and we shall now ask

him to find whether the decree was, as is alleged by defendant bona fide, satisfied and whether the former creditor is entitled to a certificate.