Zumberlal Chhotelal Agarwal And Another v. Sitaram And Others

1. The plaintiff who is the appellant here contends that the appeal in the lower appellate Court, which was filed by the respondent Nathusa and three others was filed beyond time, and so the judgment and decree of the Court, which are in his favour, must stand. The facts are these: The appeal was filed before the Additional District Judge at Amraoti on 19th January 1934. It was then within time. It was duly admitted and notices were issued to the other side. On 6th February 1934 the Additional District Judge held that the appeal had been admitted by him through an oversight and as it was below Rs. 1,000, in value, it should have been filed before the Additional District Judge at Ellichpur. The records were then sent to the District Judge at Amraoti for orders and he transferred the appeal to the Additional District Judge at Ellichpnr for disposal. This Judge took up the case on 8th February 1934. The appeal was then beyond time, and the contention before me is that the time between 29th January 1934 and 8th February 1934 cannot be allowed. It is perhaps necessary to add that the additional District Judge at Ellichpur is an Additional Judge to the District Court at Amraoti, and although he sits at Ellichpur he is attached to the District Court at Amraoti. According to the distribution of work in that Court all appeals below Rs. 1,000 in value are to be heard by this Additional Judge. It is argued he forms a separate Court altogether, and so if a man chooses to file an appeal in the wrong Court through the negligence either of his pleader or himself, he cannot claim the benefit of Section 5 of the Limitation Act. The first question then which I have to determine is whether the Additional District Judge at Ellichpur forms a separate Court, or is merely one of the Judges attached to the District Court at Amraoti. I do not think there can be any doubt about the matter.

2. The different civil Courts in Berar have been constituted under the Central Provinces Courts Act of 1917 as applied to Berar. S. 16 directs the establishment of a District Court for each civil district. It is to be noted that the direction is to constitute a District Court in each civil district and not several District Courts. The only other types of Courts contemplated are Courts of Subordinate Judges and the High Court.

3. The Additional District Judge at Ellichpur certainly does not fall within either of these categories, and so obviously he must have some connection with the one, and the only District Court which the Act contemplates for the civil District of Amraoti, which incidentally embraces Ellichpur. Section 20 of the Act deals with appeals and it directs that subject to the provisions of the Code of Civil Procedure, 1908, the Provincial Small Cause Courts Act, 1887, and any other enactment for the time being in force,

an appeal in the present class of cases shall “lie to the District Court.” It is to be observed that the section does not say “subject to the provisions of this Act,” or “save as hereinafter provided,” or anything else, to indicate that there is any different intention in any other part of the Act. S. 26 empowers the Local Government, whenever it thinks it is necessary or expedient to do so, to appoint “an Additional Judge or Judges to any District Court.” These Judges are subject to the control of the District Judge of the Court to which they are appointed and the jurisdiction and powers which they can exercise are those of the District Court subject to any general or special orders of the Local Government as to the class or value of suits and appeals which he may try, hear and determine.

4. Again it is clear that these Additional Judges do not form separate Courts but are attached to the District Court and form part of it. It is true their powers are not necessarily as extensive as those of the District Judge himself, but a mere curtailment of powers by executive orders cannot constitute a separate Court. The Local Government has no power to create Courts: only the legislature can do that, and the legislature has very clearly indicated that there is to be only one District Court in each Civil District. Therefore these Additional District Judges do not form independent Courts but are part of the Districts to which they are attached. Under O. 41, R. 1 of the CPC, every appeal has to be presented “to the Court or to such officer as it appoints in this behalf.” It is not clear whether there is only one officer appointed for this purpose in the District Court at Amraoti or several. But it would make no difference, for if an officer appointed to receive, a certain class of appeals accepts another by mistake, the appellant can hardly be blaimed for that. He cannot be penalised for a mistake made by an officer of the Court itself, especially as it is a moot point whether O. 41, R. 1 contemplates several such officers or only one.

5. The procedure normally contemplated is undoubtedly a presentation to one officer who then sends it to the Judge concerned in accordance with the distribution list before him. It may be that, for the convenience of the public, auxiliary officers are also appointed at Ellichpur, but it can hardly be argued that a presentation to an officer of the District Court appointed to accept appeals, who holds himself out as the right person to accept the appeal in question and actually accepts it, is an illegal presentation. If it is, then I quite agree with the learned Additional District Judge that it would be a fit case for the application of Section 5 of the Limitation Act, but as I say I do not think it is. The point is covered by authority. Stanyon, A.J.C, dealing with a similar situation in 1 NLJ 4 AIR 1917 Nag 162 , 1 NLJ 4 pointed out that these Additional District Judges did not constitute different Courts of appeal but merely different Judges of the same Court of appeal, and stated as follows:

The revenue districts of Saugor and Damoh constitute a single civil district. There is only one District Court for that area and it is worked by a District Judge and several Additional District Judges one of whom sits at Damoh. Appeals from the Court of Munsifs in the Saugor Damoh Civil District lie to the District Court and not to any particular Judge though they go before the different Judges of that Court for disposal according to the distribution of business.

6. In my opinion the appeal was rightly admitted in the lower appellate Court. Turning to the merits, a complicated situation arises. The appellant and the respondents all obtained decrees against the same judgment-debtor, Jagannath Persad, in different Courts. The respondent, Nathusa, who was defendant 6 obtained his decrees in the Court of the Subordinate Judge, Second Class, at. Ellichpur in Civil Suits Nos. 289 of 1926 and 149 of 1927. In execution he attached four of the judgment-debtor's fields. The C form was sent to the Collector on 6th December 1930, and 5th December 1931 was fixed as the date of sale. In the meanwhile, on 6th August 1931, the Tahsildar sold one of the fields attached for arrears of land revenue under S. 141, Berar Land Revenue Code. The plaintiffs thereupon immediately attached the sale proceeds in execution of their decrees in the Court of the Subordinate Judge, First Class. The Tahsildar's sale was confirmed on 6th October 1931, and on 26th January 1932 he deposited the balance remaining after deducting the sum due to Government, in the Court of the Subordinate Judge, First Class. It amounted to Rs. 1,250-1-6 and now forms the subject matter of the present controversy. The question is whether the defendants have a right to rateable distribution. The plaintiffs contend they have not, and claim the entire sum. The first Court agreed with them and decreed their claim in full, but the lower appellate Court distributed the sum rateably. Hence this appeal. Sections 63 and 73 of the CPC, deal with the matter of rateable distribution. The former enacts that:

Where property not in the custody of any Court is under attachment in execution of decrees of more Courts than one, the Court which shall receive or realize such property and shall determine any claim thereto and any objection to the attachment thereof shall be the Court of highest grade.

7. It is not necessary to reproduce more of the section than this for the purposes of the present case. It is clear from this that the Court of the Subordinate Judge, First Class, was the right Court to receive the money and it had thereupon to decide any claim to it and any objection to its attachment. No objection was raised to its attachment but a claim was made for rateable distribution, and in my opinion this is clearly a claim with respect to the money and so had to be decided by that Court. It was argued on behalf of the appellants that Section 63 of the CPC, cannot apply because S. 73 of the Code deals with the matter of rateable distribution, and under it a claimant has to make an application for execution to the Court which holds the assets before it actually receives them. It is admitted that none of the respondents made any application for execution to the Court of the Subordinate Judge, First Class, and so the appellants contend they are not entitled to rateable distribution.

8. There is a difference of opinion on this point. The Allahabad, Calcutta, Madras and Rangoon High Courts consider the two sections must be read together, and since the Court of highest grade has been empowered to determine any claim with respect to the property, it must include claims for rateable distribution under S. 73. Consequently there is no need for a second application for execution in the Court of highest grade: 55 All 622; AIR 1933 All 563 , 146 IC 575 , 55 All 622 , 1933 ALJ 921 21 Cal 200; (1894) 21 Cal 200 29 Cal 773; (1902) 29 Cal 773 , 1 CLJ 97 29 CWN 575; AIR 1925 Cal 966 , 87 IC 783 , 29 CWN 575 26 MLJ 406 AIR 1914 Mad 454 , 23 IC 909 , 26 MLJ 406 and 6 Rang 131. AIR 1928 Rang 157 , 110 IC 744 , 6 Rang 131 The Judicial Commissioner's Court at Nagpur took a similar view in 110 IC 524 AIR 1928 Nag 332 , 110 IC 524 and also in AIR 1931 Nag 127. AIR 1931 Nag 127 , 134 IC 273 , 14 NLJ 17 As against this there is the Bombay High Court's decision in 16 Bom 683 (1892) 16 Bom 683 and also two Madras decisions in 21 IC 869 (1913) 21 IC 869 , 25 MLJ 601 and AIR 1928 Mad 496. AIR 1928 Mad 496 , 109 IC 404 , 55 MLJ 120 All these were decided, by a single Judge whereas 26 MLJ 406, AIR 1914 Mad 454 , 23 IC 909 , 26 MLJ 406 which is after 21 IC 869 (1913) 21 IC 869 , 25 MLJ 601 but before AIR 1928 Mad 496, AIR 1928 Mad 496 , 109 IC 404 , 55 MLJ 120 was decided by a Bench of two Judges. For the reasons I have given I prefer the majority view. The next question is whether the attachment of the property made by defendant 6, Nathusa enured against the Rupees 1,250-1-6 into which that field had been converted by reason of the Tahsildar's sale or whether a fresh attachment was necessary. Pollock, A.J.C, decided a similar point in 29 NLR 152 AIR 1933 Nag 42 , 143 IC 417 , 29 NLR 152 and held that a party's rights would remain unaffected by the conversion of the property into money in this matter. It is true the learned Additional Judicial Commissioner was dealing with a case of mortgage which creates a charge on the property and that mere attachment can create no charge, but the doctrine is not as narrow as that. It is known generally as the right to follow, and occurs most frequently in equity in relation to breaches of trust. The House of Lords examined the doctrine elaborately in (1914) AC 398 (1914) AC 398 , 83 LJ Ch 465 , 111 LT 1 , 30 TLR 315 , 58 SJ 302 and the Lord Chancellor said:

It is, in my opinion, impossible to confine the right at law to follow to cases where there is a fiduciary relationship.

9. Lord Dunedin, dealing with the argument that the doctrine was limited, pointed out that other great systems of law had not been unable to solve similar problems and added:

Is English equity to retire defeated from the task which other systems of equity have conquered?

and then he reduced the argument to its logical conclusion as follows:

This comes to this: that having got hold of property which does not belong to you, if only you are wise or lucky enough to change its form you may enjoy the proceeds unmolested. Such a plea on the face of it seems only worthy of the Pharisee who shook himself free of his natural obligations by saying ‘Corban.’ In the words of technical equity it is unconscionable.

10. The noble Lords extended the doctrine beyond its confines on general principles. I can see no more fitting case for its application than this, and hold that Nathusa had a right to follow the property in the form into which it was converted, and so his attachment continued and fastened itself on to the money in spite of the sale. He is therefore entitled to rateable distribution. The next point argued was that these assets were not available for rateable distribution, inasmuch as they had not been realized “by sale or otherwise in execution of a decree” and I was referred to Mulla's Code of Civil Procedure, Edn. 10, p. 261. It was decided in 54 All 516 AIR 1932 All 411 , 138 IC 106 , 54 All 516 , 1932 ALJ 359 and also in 28 NLR 179 AIR 1932 Nag 156 , 140 IC 293 , 28 NLR 179 that the word “assets” in Section 73 of the CPC, is not confined in this way. I respectfully agree and hold the money is available for rateable distribution. It was then argued that in any case the respondents other than Nathusa were not entitled to rateable distribution because they had not attached either the field or the sale proceeds, and prior attachment is essential under S. 63. I do not think that is necessary. All that S. 63 does is to determine which of several Courts shall determine claims with respect to property then under attachment in execution of more decrees than one. This does not mean that the only claims which can be considered are limited to matters relating to the attachment, or of those who have actually made an attachment of the property. The insertion of the words “under attachment in execution of more decrees than one” appears only because the situation could not arise otherwise. If only one Court has attached the property, then that Court is the one to determine all claims relating to it, including claims for rateable distribution.

11. Under S. 73 attachment is not necessary, so far as the creditors seeking rateable distribution are concerned. All that is required is an application for execution and that was made in every case before 28th January 1932 when the money reached the Court of the Subordinate Judge, 1st Class. If an actual attachment was not necessary under S. 73, I do not see why it should be required under S. 63. As I have said, the two sections must be read together. As a matter of fact the learned counsel for the appellants appears to be under a misapprehension of fact so far as the respondent Atbalsingh is concerned. I find he attached the judgment-debtor's moveable property on 31st October 1931, and as the sale of the field was held on 28th August 1931, and confirmed on 6th October 1931, it had by then become part of his moveable property. However, in the view I have taken this would not make any difference. The appeal is dismissed. As regards costs, since Nathusa is the only one who has appeared, he alone will be entitled to the costs of this appeal.

W.D/A.L

12. Appeal dismissed.