Vithayathil, J.:— The first defendant-judgment-debtor, a Tile Works Company, is the appellant. The appeal is from an order allowing attachment of about Rs. 2000 deposited by the first defendant in O.S No. 79 of 1124 of the Kottayam District Court. That is a suit instituted by the first defendant company for compelling its lessor to accept the rent deposited by it in court and for a declaration that it had not forfeited the right to hold the property on lease. That suit is being contested by the lessor who has filed another suit to recover possession of the leasehold property from the first defendant. When the decree-holder in this case applied for attachment of this amount the first defendant objected on the ground that the amount was not attachable. On the basis of the decision of the Travancore High Court in — ‘Kunjunni Pathuval v. Sankaranarayana Panikker’, 28 Trav LJ 633 the Court below held that since the lessor had not accepted the amount deposited by the first defendant the amount continued to belong to the first defendant and was, therefore, liable to be attached for a decree obtained against the latter. The appeal is from that order.
2. The only question for consideration in this appeal is whether the amount deposited by the first defendant Company in the suit filed by it for compelling its lessor to accept the same is liable to be attached for a decree obtained against the first defendant. Learned counsel for the appellant contended that the first defendant had no absolute disposing power over the money deposited by it in the suit instituted against the lessor and that the money was in the custody of the Court for being given to the party entitled to the same according to the decision in the suit and that it could, therefore, be attached only subject to the result of the suit.
3. If it is decided in the suit that the lessor is bound to accept the amount deposited by the first defendant and to allow the latter to continue in possession of the leasehold property the person who will be entitled to the money will be the lessor and not the first defendant. It is only in case the Court finds that the lessor cannot compelled to accept the amount deposited by the first defendant that the latter will be entitled to get back the amount. What is available for attachment to a creditor of the first defendant is this right of the first defendant to get back the amount in case the lessor is not compelled to accept the same. This seems to be the correct position.
4. We do not think that the mere fact that the lessor has not accepted the amount deposited by the first defendant company would make it money belonging to the first defendant which it can dispose of as it likes. When an amount is deposited in court by a party to a suit and reliefs are claimed in the suit on the basis of the deposit, the amount deposited must be deemed to be in the custody of the Court to be disposed of by it according to the decision in the suit. The Court may decide that the defendant in the suit was not bound to accept the amount deposited by the plaintiff, and in that case the plaintiff will, be entitled to draw the amount from court. If the court finds that the defendant in the suit was bound to accept the amount the person who will be entitled to draw the amount will be the defendant in the suit and in that case the plaintiff will have no manner of right to the amount. The question as to who will be entitled to the money will depend upon the decision in the suit. The creditors of the plaintiff or of the defendant may attach the amount put the attachment will be subject to the result of the suit. We do not think that the decision relied on by the learned District Judge, namely. — ‘Kunjunni v. Sankaranarayana’, 28 Trav LJ 633 is opposed to this position. In deposited in a redemption suit by the mortgagor for payment to the mortgagee was sought to be attached before judgment in a suit instituted by a third person against the mortgagor and the trial Court held that the money deposited belonged to the mortgagee and not to the mortgagor and therefore disallowed the attachment. In revision, Sahkarasubba Iyer J. held that so long as the bortgagee had not signified his willingness to accept the amount deposited by the mortgagor the money did not cease to be the property of the mortgagor and was, therefore, liable to be attached before judgment in the suit instituted against him. The learned Judge relied on the rulings in — ‘Dal Singh v. Pitam Singh’, 25 All. 179 and — ‘Mothiar Mira v. Ahmatti Ahmed’, 29 Mad 232. In the first case money was deposited by the mortgagor under section 83 of the Transfer of Property Act for payment to the mortgagees on their expressing their “willingness to accept the money so deposited in full discharge” of the amount due to them. The mortgagees were not willing to accept the amount deposited in full satisfaction of the amount due to them and, therefore, the mortgagor filed a suit for redeeming the mortgage While the suit was pending, a portion of the amount deposited was attached by some creditors of the mortgagees. Subsequently the mortgagees drew the balance amount from court. The mortgagor contended that this amounted to an acceptance by the mortgagees of the money deposited in full discharge of the sum dud to them. While accepting this contention of the mortgagor the learned Judges observed that the trial Court had no jurisdiction to allow the amount in deposit which had not been accented by the mortgagees to be attached and drawn out of Court by their creditors. The question whether the amount could be attached for a decree obtained against the mortgagor did not arise for consideration in that case and was not considered by the Court.
5. In — ‘Mothiar Mira v. Ahmatti Ahmed’, 29 Mad 232 also the amount deposited in Court by the mortgagor under section 83 of the Transfer of Property Act, was attached by a creditor of the mortgagee before the mortgagee had expressed his willingness to accept the money deposited in full discharge of the amount due to him. Following the decision in — ‘Dal Singh v. Pitam Singh’, 25 All 179 the Madras High Court held that the money was not liable to be attached by the creditor of the mortgagee. Here also the question whether the amount could be attached by the creditor of the mortgagor did not arise for consideration. We do not think that — ‘Kunjunni v. Sankaranarayana’, 28 Trav LJ 633 is an authority for the position that the amount deposited by a mortgagor in a redemption suit can be attached by a creditor of his merely because the mortgagee has not accepted the amount deposited in full discharge of the amount due to him and that the attaching creditor can draw the amount irrespective of the decision in the suit.
6. A similar question came up for consideration before this Court in — ‘Krishna Pillai v. Bhargavi Amma’, 1950 Ker LT 538. In that case, money deposited in Court by the mortgagor as redemption price under the decree was attached by the creditor of the mortgagor. It was held that the amount was earmarked for payment to the mortgagee, that it could not be treated as money lying to the credit of the mortgagor, and that it was, therefore, not liable to be attached by his creditors. The decision in — ‘Kunjunni v. Sankaranarayana’, 28 Trav LJ 633 was distinguished on the ground that the amount sought to be attached in that case had been deposited by the mortgagor before the decree was passed while in — ‘Krishna Pillai v. Bhargavi Amma’, the amount attached was the sum fixed by the decree as redemption price payable to the mortgagee. The following observation also was made about the decision in ‘28 Trav LJ 633”:
“It is not necessary for us in this case to pronounce upon the correctness or otherwise of that decision, for it is clearly not applicable to the facts of this case.”
7. Reference may be made in this connection to the decision of the Allahabad High Court in — ‘Abdus Salam v. Wilayat Ali Khan’, 19 All 256. In that case the holder of a decree for redemption paid the pre-emptive price into Court. A creditor of the decree-holder applied for attachment of the money so deposited and was allowed by the Court to withdraw a portion of it. After the decree for redemption was confirmed in appeal the pre-emptor applied for possession of the pre-empted property. It was held that the decree-holder was entitled to obtain possession and that the Court went wrong in paying any portion of the pre-emption price to anyone other than the person entitled to it under the decree for pre-emption. Edge, C.J and Knox J. observed thus in that case:
“Money paid into Court in a suit cannot be taken out of Court by a creditor of the man who pays it in so long as the suit is pending, unless the result is that the person who paid it in is held entitled to withdraw the money or some part of it, and then the creditor of the person who paid it in can only have execution against so much of that money as his judgment-debtor would be entitled to take out of court. Money paid into Court by a plaintiff in pre-emption to be paid over in a certain event to the defendant in the suit is in the custody of the Court until the result of the litigation is known.’
8. Learned counsel for the appellant referred to certain other decisions also in which it was held that money deposited in court by a person for a particular purpose could be attached by his creditor only subject to the result of the suit in which the deposit was made. In — ‘Shantha-Nand v. Basudevanand’, AIR 1930 All. 225 (FB) it was held that the amount deposited in Court as security could be attached by a creditor of the depositor subject to the charge available in the first instance for the purpose for which the security has been Offered. In — ‘Jagadish Narain Singh v. Mt. Hamsakal Kuer’, AIR 1929 Pat 97 it was held that money deposited by a person as security for the costs of appeal to the Privy Council could be attached by a creditor of the depositor but that the order of attachment should be subject to the result of the appeal. To the same effect is the decision in — ‘Province of West Bengal v. Bholanath’, AIR 1950 Cal 174, in — ‘Gouranga Behai v. Manindra Nath’, AIR 11833 Cal 625 the defendant deposited some amount with the plaintiffs' pleader under Court's order for avoiding the appointment of a receiver. The deposit was made subject to the result of the suit which was contested by the defendant. The defendant was subsequently adjudicated insolvent and the receiver claimed the amount deposited as part of the assets of the insolvent. The suit was ultimately decreed. It was held that the amount deposited was payable to the plaintiffs in the suit when they obtained judgment in their favour and that it did not form part of the assets of the insolvent. In — ‘Lakshman Dadaii v. Damodar Ambadas’, 15 Bom 681 the judgment-deb-tor deposited some amount in court as per the direction of the court. The decree-holder refused to accept the amount as he had appealed against the order under which the amount was deposited. A creditor of the judgment-debtor attached this amount and drew the same. Subsequently the appeal filed by the decree-holder was dismissed and he thereupon applied for payment of the amount. The judgment-debtor contended that he had already paid it. It was held that when the judgment debtor paid the amount into court the Court held it on account of a person who would be found entitled to it and that the Court was not justified in treating the money as belonging to the judgment-debtor and in paying it to his creditor.
9. Learned counsel for the respondent distinguished these cases on the ground that in these cases amounts were deposited in court either towards decree-debt or as per orders of Court. It was argued that in such cases only the amount deposited can be said to be ear-marked for a particular purpose and that in the present case the appellant was under no obligation to make the deposit. It was therefore, contended that it was a voluntary payment by the first defendant company and that it could withdraw the amount if it wished to do so. It is true that there is some difference between payments made in court as per decrees or orders of Court and voluntary payments made by a party for getting some relief from the Court, in the case of a decree-debt the amount becomes the property of the decree-holder when it is paid into court. In the case of payments made as per orders of Court the amount is ear-marked for the purpose for which the payment is ordered. The same may not be the case when a person makes a voluntary payment in court for the purpose of getting a particular relief. But even in such a case the money deposited cannot be said to be at the absolute disposal of the person who makes the deposit. In the case of money deposited in court in a suit the Court has the custody and control of it for purpose of that suit: Stirling J. in — ‘Stephens v. Green’, (1895) 2 Ch. 148. In other words, as soon as money is deposited in court for the purpose of a suit the Court becomes seized of it and until the Court decides one way or the other as to who is entitled to the money it cannot be said that the money belongs either to the plaintiff or to the defendant. After the deposit is made the person who makes the deposit ceases to have absolute control over the money. It is not like money deposited in a Bank. The Court is not bound to return the money as and when the depositor wants it. His right to get back the money will depend upon the decision of the Court. Reference may be made in this connection to the following passage in Halsbury's Laws of England (1910 Edition), Vol. XIV, page 113;
“Where any moneys or securities are in court to the general credit of any cause or matter, or to the account of any class of persons, and an order is made to prevent the transfer or payment of such moneys or securities or any part thereof without notice to the assignee of any person entitled in expectancy or otherwise to any share or portion of such moneys or securities, the person by whom such order shall be obtained on the shares of such moneys or securities effected by such order shall be liable at the discretion of the Court or a Judge, to pay in costs, charges, and expenses which, by reason of any such order having been obtained, shall be occasioned to any party to the cause or matter or any persons interested in any such moneys or securities.”
10. If the argument of the respondent is accepted a judgment-debtor's application to get an auction sale set aside under O. 21, R. 89 of the CPC, by depositing the decree amount can be defeated by a creditor of his attaching the money after the deposit is made. Similarly a mortgagor's suit to redeem the mortgage can be defeated by his creditor attaching the money deposited by him. In the present case, if the decree-holder is allowed to attach the amount deposited by the first defendant and draw the same from court the suit may be dismissed on that ground alone. We do not think that the rights of a party who seeks the aid of Court for a particular relief can be defeated in that manner or that the power of Court to decide a suit or other proceeding on the basis of the deposit of money into court by one of the parties can be taken away by a third person. It is true that it cannot be said that in such cases the person who makes the deposit will have no manner of right to the amount deposited. If the petition under O. 21, R. 89, is dismissed the judgment-debtor will be entitled to get back the amount. Similarly, if the suit for redemption or the suit for compelling the lessor to accept rent is dismissed, the plaintiff will be entitled to get back the amount deposited by him. It cannot, therefore, be said that the person who makes the deposit in these cases has no manner of right to the amount deposited. It cannot also be said that he has no disposing power whatever over the money deposited and that it is, therefore, not property attachable under Section 60 of the CPC. But his disposing power is a limited one. He can transfer the right to that money only subject to the result of the suit. The transferee will get the money only if the Court ultimately finds that the depositor is entitled to get back the amount either in part or in whole. It is only this limited right of the depositor that can be attached by a creditor of his. The creditor can attach whatever rights the depositor may have in the money according to the decision in the suit. Such an attachment can be allowed in this case also. But the decree-holder will not be allowed to draw the money from court until the final decision of the suit in which the deposit is made. The attachment will be subject to the result of the suit.
11. The order of the Court below allowing the attachment is modified to this extent. The appeal is partly allowed. There will be no order as to costs.
A/V.S.B
12. Appeal partly allowed.