V.S. Rm. Ramanathan Chettiar vs V. St. N. Chidambaram Chettiar

Pakenham Walsh, J.—This is a Civil Revision Petition preferred by the decree-holder in O.S. No. 41 of 1930, who got a decree on 2nd

September, 1930, in the District Munsif''s Court of Palni against one Venkatachala Chetti, Zemindar of Chatrapatty. On account of default in

payment of Government revenue this Venkatachala Chetti''s property (Chatrapatty Village) has been brought to sale. The Tahsildar sold the village

on 12th November, 1931. The sale was confirmed by the Collector on 23rd December, 1931, and the purchase-money was in the hands of the

Tahsildar who conducted the sale. The Respondent, who had obtained a decree against the same judgment-debtor, filed E. P. No. 790 of 1931

on 10th December, 1931, asking for attachment of the money in the hands of the Tahsildar. The District Munsif ordered attachment on 12th

December, 1931, which was made absolute on 15th January, 1932. On 16th January, 1932, the Respondent asked the District Munsif of Palni to

send for the amount and issue a cheque. The Tahsildar was addressed by the District Munsif, as he had not sent the money, as to why it had not

been sent and whether there were any prior attachments on it. As a matter of fact the Tahsildar sent the money to the Sub-Court, Dindigul, on 6th

January, 1932. In his reply, dated 25th February, 1932, the Tahsildar stated that the first attachment was that of the District Munsif''s Court. He

has wrongly stated there that there was no direction from the Court to credit the amount to O.S. No. 21 of 1929 and he also said that as he had

received several attachment notices the amounts could not be credited to any of the suits.. The Respondent claimed that he was entitled to priority

in payment because he got the first attachment order on 12th December, 1931. This claim has been recognised by the Subordinate Judge, and it is

against this decision that this revision petition is put in.

Although the matter has been very elaborately argued for nearly two days the point in issue is perfectly simple. The matter falls under Order 21,

Rules 52 and 53 and u/s 63, Civil Procedure Code. The property while it was being attached under decrees of more Courts than one was in the

custody of a. public officer, the Tahsildar. It is not disputed that the Sub-Court of Dindigul being the Court of a superior grade is the Court which

had to realise such property and determine all claims thereto. Since the decision in E.M. Visvanadhan Chetti and Others Vs. Arunachellam Chetti,

it is perfectly clear that the custody Court, cannot distribute money or adjudicate claims to it. It must remit it to the attaching Court and all that it

can settle is which attachment was made first if the attaching Courts are of equal standing. That was a very strong case since the custody Court

happened itself to be the attaching Court, yet it was held that until the money was actually transferred to the decree in which it was sought to be

attached the Court continued to be merely the custody Court. Consequently, the only argument which is open to the Respondent to claim priority

and which has actually been adopted before me is this. Because public officers are supposed to perform their duties properly it must be held that

when the attachment order was issued by the District Munsif of Palni to remit the money the Tahsildar did by a legal fiction remit it, and the assets

therefore came into the hands of the Palni Court either on the date of the order itself or at least on the date when the order reached the Tahsildar.

Consequently they were assets in his hands u/s 73 at the time when attachment applications had not been made by the other decree-holders to the

Sub-Court of Dindigul. Now it is clear that if this argument is to be allowed it must cover any sort of delay whether caused by negligence, delays

incidental to official business, or delays in transmission through the Post. There is absolutely no authority for the novel proposition that because the

Court ordered the attached property to be sent to it by a public officer, therefore the money must be considered to have reached the Court, from

the date of the order or at least from the date of its receipt by the public officer. Admittedly the attachment per se does not create any charge or

interest on the property so as to give the first attaching creditor any preferential claim. In Muttukaruppan v. Mutturamalinga I.L.R.(1883) 7 Mad.

47 it was held that the words ''in the custody of any Court'' imply actual custody and relate back to Section 272(a) of the old Code. That case is

also authority for the proposition that there is no difference in this respect between movable or immovable property which is attached. The learned

pleader for the Respondent sought to found an argument on Order 21, Rule 56 which says:

Where the property attached is current coin or currency notes, the ""Court may, at any time, 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.

It is not necessary in this case to say whether, if the District Munsif of Palni had passed such an order before the property had been also

attached by the Subordinate Judge of Dindigul this would have amounted to a receipt of the assets by the District Munsif of Palni u/s 73 because as

a matter of fact no such order was passed.

I do not think it is necessary to discuss the immense volume of case-law which has been quoted before me in this revision petition, because the

order appealed against cannot be sustained excepting on the fiction alluded to above that when the order directing the Tahsildar to remit the money

to the District Munsif of Palni was passed, or at least when it reached the Tahsildar, the Court not only got the custody of the money but that it was

actually transferred to the decree in O.S. No. 21 of 1929. There is absolutely no authority in support of either of these propositions. As stated

above, E.M. Visvanadhan Chetti and Others Vs. Arunachellam Chetti, shows that even where the attaching Court and the custody Court are the

same the assets would not reach the attaching Court u/s 73 until it has actually been ordered to be credited to the decree in question.

Both the learned advocates agree that the question as to whether the Respondent can apply for rateable distribution at all may be left open by

this Court. It is therefore not necessary for me to express any opinion on that point. The order of the learned Subordinate Judge that the

Respondent has priority merely on account of his being the first attaching decree-holder cannot be sustained. The revision petition is therefore

allowed with costs throughout and the Respondent''s application is sent back to the Subordinate Judge for disposal along with the other

applications.