Hari Das Acharjee Chowdhury v. Baroda Kishore Acharjee Chowdhury

This appeal raises, amongst other questions, the question of the moaning of the word “debt” in sec. 266 of the Civil Procedure Code, which describes the property liable to attachment and sale in execution of a decree.

It appears that one Bishen Chand Dhudhuria in 1883 obtained a decree against the 2nd Defendant, who is the adoptive mother of the 1st Defendant, and that this decree was purchased by the Plaintiffs' father. In 1885 the first Defendant executed a deed by which he bound himself to pay to the 2nd Defendant a maintenance allowance of Rs. 100 per month during the time of her life, and he secured the payment of that sum by the mortgage of certain properties. On the 5th August 1887 the Plaintiffs ??? the amount of the ??? to the 2nd ??? be necessary hereafter to ??? more particularly to the exact terms of that order, but under it half the maintenance allowance for the period extending from August 1887 to August 1888 was attached, sold, and purchased by the Plaintiffs. The Plaintiffs then brought a suit against the 1st Defendant to obtain that money, and got a decree. Subsequent to this the Plaintiffs again acting upon the prohibitory order of the 5th August 1887 proceeded to sell through the Court in execution of their decree half the allowance due for the period extending from September 1888 to November 1890 amounting to 1,350 rupees, and on the 20th May 1891 they purchased the allowance so due for 165 rupees. The present suit is brought against the 1st Defendant to enforce the payment of that amount.

Both the lower Courts have held that before the 20th May 1891, the date of the Plaintiffs' purchase, and even before the issue of the notice of the Kith January 1891 calling upon the Defendant to pay the money into Court, the amount claimed had been paid to the 2nd Defendant, and that there was nothing due. That being so, it seems clear that the Plaintiffs by their purchase bought nothing, as the debt purchased by them had been satisfied and was not then in existence.

In this state of things Mr. Hill for the Appellants has contended that the 1st Defendant is not entitled to plead payment of this debt, as the effect of the prohibitory order of the 5th August 1887 was to attach the money; and that any payment by the 1st Defendant subsequent to such attachment was null and void. That therefore raises the question whether the order of the 5th August 1887 effected any valid attachment of the money now claimed. Sec. 266 of the Civil Procedure Code provides that debts, amongst other tilings, may be attached and sold; and the question therefore is what is the meaning of the word “debt” in that section.

We think it is clear that a debt may include a sum of money due by one person to another, and which is actually payable at the time, as well as a sum of money which is due but not actually payable then. We will assume that the word as used in sec. 266 has the wider meaning and includes both descriptions, as it is not necessary for the purposes of this case to restrict the meaning. All the authorities seem to show that a debt must be a perfected and absolute debt, not merely a sum of money which may or may not become payable at some future time, or the payment of which depends upon contingencies which may or may not happen. The Common Law Procedure Act in England provides that “debts due or accruing” may be attached. And the construction which was put upon the word “accruing” was, that it must be an actually existing debt, and not merely a debt which might or might not become due. The case of Syud Tufuzzool Hossein Khan v. Rughoo Nath Pershad also clearly indicates that an ??? must operate at the time of ??? upon some existing debt, ??? must not be of an ??? so as to fasten upon some future state of property. There must be at least an existing debt though it may be payable on a future debt. It seems to us impossible to hold that on the 5th August 1887 there was any existing debt in respect of the maintenance allowance which might become payable during the period extending from September 1888 to November 1890. The allowance was only payable to the 2nd Defendant during her lifetime. If she died before September 1888, there obviously would have been no money due at all. Wo think therefore that the Court could not, on the 5th August 1887, legally attach the money that might become payable as maintenance to the 2nd Defendant for the period extending from September 1888 to November 1890, and that there was no legal attachment of that money. The attachment order of the 5th August 1887 is, moreover, giving it the widest scope, of an extremely ambiguous character, and cannot be said to operate as an attachment of the sum of money now claimed. It recite? that the judgment-debtor is entitled to get from the 1st Defendant a monthly allowance of 100 rupees, that the decree-holder prays that the amount of the monthly allowance should be attached and appropriated to the satisfaction of his decree, and that an order for the attachment of half the allowance due to the judgment-debtor has been passed. It then proceeds thus: —“You are therefore informed under order passed to day that if the sum of 100 rupees be due from you to the debtor you should not pay a moiety of the said amount to the debtor until further orders are passed by the Court, and that you should deposit the said moiety in Court.” There is nothing in that order, whatever its intention may be, to effect an attachment of the money now claimed. It is also, we think, a very doubtful question whether the attachment made by that order was not spent when the property attached under it was sold. It is not necessary however to decide that question, as we think there was no valid attachment of the debt sold at the sale of the 20th May 1891 and, as already stated, there was no existing debt at that time. It follows that the Plaintiffs acquired nothing by their purchase, and that there was nothing to prevent the 1st Defendant from paying the money to the 2nd Defendant.

In the previous proceedings to enforce payment of the maintenance charge for the earlier period extending from August 1887 to August 1888, the Plaintiffs obtained a decree which was confirmed up to this Court. It was suggested but hardly argued, that decree operated as res judicata in the present case. It is sufficient to say that the decree has not boon put in, and that the contention is on that ground untenable. Besides this for the reasons given by the District Judge, if for no other reasons, the decree could not operate as res judicata in the matter now in dispute. The previous suit was cognizable by the Munsif and was tried and determined by him. The present case was cognizable only by the Subordinate Judge and was tried by him.

We have been referred to the judgment of this Court in that suit by way of a precedent, but it appears to us that it has no bearing on the present case. Then at the time of the sale there appears to have been a debt actually due by the 1st Defendant to the 2nd Defendant, and the main question was whether the sale was vitiated by the absence of an attachment. The Court considered that the omission to attach did not vitiate the sale, but it also considered that there was an attachment of some kind sufficient to give validity to the sale. It did not, however, hold that attachment was effected by the order of the 5th August 1887.

We think that the decision of the District Judge in this case is right. The appeal is accordingly dismissed with costs.

S.C.S

Appeal dismissed.