Ram Autar v. Sita Ram

Sinha, J.:— This is a plaintiff's appeal and arises out of a suit for recovery of Rs. 450 from defendant No. 1, Sita Ram. The facts very briefly, are these. There were three decrees against defendant No. 2, Mr. E.B Albert, who was employed as a guard in the East Indian Railway. The first two decrees, No. 100 of 1935 and No. 121 of 1936, were held by defendant No. 1, Sita Ram. The third decree, No. 1203 of 1936 was held by the appellant, Ram Autar. The first two decrees were decrees of the court of the Munsif of Saharanpur. The third decree was a decree of the court of small causes, Moradabad. It is conceded that the decree-holder has realised his decree No. 100 of 1935 in its entirety. We are thus left with the two decrees No. 121 of 1936 of the court of the Munsif of Saharanpur and No. 1203 of 1936 of the court of small causes, Moradabad. There was rivalry in execution between the two decree-holders and we are concerned with the respective rights of both.

Sita Ram made an application before the Munsif of Saharanpur for attachment of the salary of Mr. Albert in execution of his decree No. 121 of 1936. This application was made at Saharanpur. A little later Ram Autar made an application for attachment in his decree No. 1203 of 1936 at Moradabad. This application for execution by Ram Autar proved infructuous, inasmuch as it offended against the provisions of order XXI, rule 48, which enjoins that “where the attachable proportion of such salary or allowances is already being withheld and remitted to a court in pursuance of a previous and unsatisfied order of attachment, the officer appointed by the Government in this behalf shall forthwith return the subsequent order to the court issuing it with full statement of all the particulars of the existing attachment.”

Mr. Albert was getting a salary of about Rs. 300.

The result of the failure of the application by Ram Autar was that Sita Ram's decree No. 121 of 1936 was being satisfied by regular monthly payments. After the payment in July, 1936, only a sum of Rs. 8-8-0 remained due on account of that decree, with the result that in August, 1936, after deducting a sum of Rs. 8-8-0, the court at Saharanpur remitted the balance of the sum attachable to the court at Moradabad. On the 4th September 1936, Sita Ram applied to the court of small causes at Moradabad, after having had his decree transferred to that court, for rateable distribution. The application was vitiated by some legal defect, which has not been pointed out to me, but which, I take it, was fatal to it, and that application remained a dead letter. On the 7th September, 1936, there was a compromise between the judgment-debtor, Mr. Albert, on the one side and Ram Autar, the appellant before me, on the other. It provided that the judgment-debtor was to pay to Ram Autar a sum of Rs. 65 a month. It might be mentioned that it has been agreed between the parties before me that the attachable proportion of the allowance or salary of Mr. Albert was in excess of Rs. 65, that is to say the compromise in no way offended against the provisions of the law when it guaranteed the payment of Rs. 65 a month to Ram Autar. On the 8th September, 1936, Sita Ram applied for correction of his application. The court passed the following order on this application: “From the report of the office it is clear that the execution case No. 1203 of 1936 has, as a result of the compromise, been struck off, and the decree-holder may take such legal steps as he deems proper.” On the 10th September, 1936, Sita Ram made a fresh application for execution. He prayed that his execution may be proceeded with after deducting Rs. 65 a month, the sum which was paid under the compromise to Ram Autar. The proceedings remained in an unsettled condition for a long time. Sita Ram was playing a dual game. At Saharanpur he prayed that no portion of the money should be sent to Moradabad in satisfaction of the decree of Ram Autar. At Moradabad he off and on pressed his prayer under section 73 of the Code of Civil Procedure for rateable distribution. On the 4th March, 1937, Sita Ram got his application at Moradabad for rateable distribution definitely struck, off, but very soon after, that is on the 3rd June, 1937, he renewed his prayer at Moradabad far rateable distribution. Ram Autar took exception to this prayer on the ground that the compromise had guaranteed him payment of Rs. 65. It was a mere accident that the judgment-debtor had not the money in his hands and no payment had upto that moment been made to him, but, he argued, the sum which was left in the hands of the railway authorities must be deemed to be his money inasmuch as, so far as Mr. Albert was concerned, he had agreed to pay that money to him. It might be mentioned here that the sum which had actually been left in the hands of the railway authorities represented the amount due to Ram Autar from the 7th September, 1936, the date of the compromise, to the 5th July, 1937, the date when the money was received by the court at Moradabad from the railway officials. Despite the objection of Ram Autar, the court at Moradabad directed payment of Rs. 391-13-0 to Sita Ram, it is this order of the 5th July, 1937, which has been challenged by Ram Autar by his suit which has given rise to this second appeal. The learned Munsif, as also the learned Civil Judge in appeal, dismissed the suit. The Munsif framed the following issues:

1. Is the defendant No. 1 not entitled to rateable distribution?

2. Is the suit time barred?

3. To what relief is the plaintiff entitled?

He tried the first and the third issues together and came to the finding that there was no legal bar to the defendant No. 1 claiming rateable distribution. Issue No. 2 was not pressed before him and need not detain us. The plaintiff has come before me in second appeal. Mr. Baleshwari Prasad, the learned counsel for the respondents, has raised a preliminary objection to the hearing of the appeal. The argument is that the claim was only for recovery of money, less than Rs. 500, and section 102 of the Code of Civil Procedure shuts out a second appeal. Article 26 of the second schedule to the Provincial Small Cause Courts Act furnishes a sufficient answer to this and the preliminary objection may be dismissed from further consideration. Coming to the merits of the case, it is clear that section 73 of the Code of Civil Procedure has, in the circumstances of the case, no application. It says: “Where assets are held by a court and more persons than one have, before the receipt of such assets, made application to the court for the execution of decrees for the payment of money….” The application in a case like this must be a subsisting application, vide Chettiar Firm v. The Official Assignee(1). There can be no doubt that on the 4th March, 1937, Sita Ram got his application for execution struck off. I am aware of those cases where applications for execution have in certain circumstances, although they have not materialised, been treated as subsisting applications; but those are cases where for no fault of the party the court has consigned it to the record room, as for instance the case of Bhan Datt Upadhiya v. Tulsa Kunwar(2). But where, as here, the party himself has got his application for execution struck off, it has, been held that if the execution court intended to finish the matter which was pending before it and to dispose of it, then the application cannot be deemed to remain alive, vide Muhammad Taqi Khan v. Raja Ram(3). In this case I think that, as the decree-holder wanted his application for execution to be struck off, it does not lie in his mouth to say that this application remained a pending application.

Another point has been argued by the learned counsel for the respondent. He says that if there was no application pending on the 3rd June, 1937, he was entitled to the whole of the money. The short answer to this argument is that if by arrangement on the 7th September, 1936, Mr. Albert decided to pay Rs. 65 a month to the appellant at a date when there was nothing to prevent him from so doing, the subsequent conduct of the parties should not affect the rights of Ram Autar. On a consideration of all the facts it appears that the application of the 3rd June, 1937, by Sita Ram was a misguided application. At any rate, it ought not to be allowed to make any inroads upon the rights of Ram Autar such as had been assured to him under the compromise of the 7th September, 1936. I, therefore, allow the appeal, set aside the decrees of both the courts below and decree the plaintiff's suit. The parties will bear their own costs throughout.

Leave to appeal under the Letters Patent is refused.