Subramaniam vs Pakkiriswami Vandayar and Others

Govinda Menon, J.—This is an application to revise the order of the District Munsif of Tanjore in E. A. No. 369 of 1955 on his file. The

contention put forward by Mr. T. S. Kuppuswami Aiyar for the petitioners is that the lower Court failed to exercise a Jurisdiction vested in it by

law by refusing to comply with the application for the Issue of a cheque and that if I am satisfied that the learned, District Munsif has misdirected

himself with regard to the provision of law applicable, then the order of the lower Court has to be set aside:

The short facts which have led up to this petition are as follows: In Order 8. No. 50 of 1954, on the file of the District Munsif, Tanjore, the

petitioner, Subramaniam, filled a suit for the recovery of a sum of money against the respondents, one Pakkiriswami Vandayar, and pending

decision obtained an attachment before judgment of certain, moneys due to this Pakkiriswami Vandayar from Raja Mirasidar Hospital, Tanjore.

There was no dispute that there was an attachment before Judgment and that it was confirmed. After the suit was decreed the petitioner applied in

execution for confirmation of the attachment which had been effected prior to the decree.

As a result of it, the District Munsif directed the garnishee to produce the money in Court by an order dated 20-4-1955. In pursuance of that

order, the garaishee produced the money in the Court on 20-6-1955. In the meanwhile, third parties, Mayuranathan and Palani Andi had filed a,

suit against the said Pakkiriswami Vandayar for the recovery of sums of money by O. S. No. 14 of 1955 in the Sub-Court of Tanjore, and

pending that there was an order of attachment before Judgment of the same amount. The suit was decreed on 14-6-1955, but no execution was

taken out in pursuance of the decree obtained by Mayuranathan and Palani Andi.

In this state of things, when the money came to the custody of the District Munsif''s Court, Tanjore, a petition I. A. .No. 283 of 1955 on the file

of the Subordinate Judge''s Court, Tanjore, was filed, for the raising of the attachment before Judgment, effected by the Sub-Court. The learned

Judge in that order in paragraph 6 says as follows:

Inasmuch as this Court has also attached the fund in question and this Court is the superior Court, this Court is entitled to have the fund sent over

to this Court.

It is on that ground that the application for raising the attachment before judgment in O. S. No. 14 of 1955. was dismissed by the learned

Subordinate Judge. The application for the issue of the cheque was dismissed by the learned District Munsif relying upon the above order of the

Sub-Judge.

It is contended by Mr. Kuppuswaml Aiyar that the learned Judge has failed to understand the implications of 3. 63, C. p. Code, which gives the

superior Court the power to adjudicate as regards claims of rival attaching decree-holders only in cases where the attachments have been in

execution of decrees of more Courts than one. In the present case there is no doubt whatever that the Subordinate Judge of Tanjore has not

attached this amount in the possession of the garnishee in execution of the decree in O. S. No. 14 of 1955.

Therefore, the order of the Subordinate Judge dismissing the application for raising the attachment would not prevent the present petitioner from

asking for the Issue of a cheque in his favour If the Subordinate Judge had attached the same amount in execution of the decree in O. S. No, 14 of

1955, then that Court as the superior Court would have been entitled to adjudicate as regards the rival claims. In the absence of any attachment in

execution, the order of the District Munsif sending the money to the Sub-Court without issuing a cheque to the petitioner is ultra vires and without

Jurisdiction.

The order of the lower Court is, therefore , set aside and the District Munsif is directed to issue a cheque in favour of the petitioner by getting

back the money from the Sub-Court, if it had been sent there. No order as to costs in this petition.