UNION OF INDIA Vs. BAPULAL HARIPRASAD

JUDGEMENT

(1.) This revision petition is directed against the order dated 18 September 1959 passed by the learned Civil Judge (S. D.) Baroda in Darkhast No. 636 of 1958 by which the learned Judge dismissed an application of the petitioner the Union of India for raising an attachment levied by the learned Judge on parts of two money order amounts remitted by the opponent No. 3 the trustees of the Provident Fund of the staff of Shree Ambica Mills Ltd. (No. 3) to the opponent No 2 Lalkhan Husainkhan. The opponent No. 1 obtained a decree in a small cause suit against opponent No. 2 and filed Darkhast No. 636 of 1958 for recovery of the decretal amount. The opponent No. 2 was a mill hand working in Shree Ambica Mills Ltd. and the trustees of the provident fund of the staff of those Mills held an amount of Rs. 1 0 for the benefit of the opponent No. 2. It appears that after opponent No. 2 was discharged the trustees closed the account of the opponent No. 2 and sent an amount of Rs. 1 0 to the opponent No. 2 by two money orders. The amount was paid to the postal authorities with money order forms on 29-1-1959. On the same day the opponent No. 1 obtained a prohibitory order in the aforesaid darkhast from the learned Civil Judge (S. D.) Baroda prohibiting the Union of India from paying a sum of Rs. 664-70 nP. that beeing the decretal amount to the opponent No. 2 from the amount of Rs. 1 0 On this the amount of Rs. 664.70 nP. was deposited by the postal authorities in the Court. They however made an application on 9-7-1959 for raising the attachment. The application was based on the ground that the attached amount belonged to the remitter the opponent No. 3 and that therefore it was not attachable as the property of the opponent No 2. The second ground was that the amount being the provident fund money of the opponent No. 2 was not attachable by virtue of the provision contained in sec 10 of the Employees Provident Fund Act. It appears from the order of the learned Judge that the postal authorities placed reliance upon the provisions of sec. 44 of the Post Offices Act 1898 and rule No. 297 of the Rules framed by the Central Government under sec. 43 of the same Act. Section 44 provides that a person remitting money through the Post Office by means of a money order may require that the amount of the order if not paid to the payee be repaid to him or be paid to such persons other than the original payee as he may direct. Rule 297 provides that in all cases where a money order is attached in the hand of the Post Office on a decree against the payee payment of the attached amount in the Court should only be made after reference to the remitter and only in case he does not object to such pay- ment. Because of these provisions the learned Judge directed the postal authorities to contact the remitter and to ascertain from the remitter whether it had any objection to the payment of the attached amount into the Court. On this the postal authorities contacted the opponent No. 3 and the trus- tees sent the reply dated 30th January 1959. The reply of the trustees appeared to be vague and equivocal and that reply did not state in specific terms as required by rule 297 that it had no objection to the amount be- ing paid into Court. Therefore after the production of the aforesaid reply the petitioner contended that rule 297 had not been complied with and the attachment should be raised. On this the learned Judge directed by his order on 29th August 1959 that a second reference should be made to the remitter and it should be specifically ascertained from the trustees whether they had any objection to the amount being deposited into the Court. On this the trustees sent the second reply Ex. 18 dated 7-9-1959. This reply was to the effect that the trustees did not understand what sort of consent or dissent they were called upon to give. They further stated that they had made the position clear that it was not for them to give any consent or dissent and they further stated that the matter should be decided according to law. The learned Judge construed this latter reply as showing that the trustees had not withheld their consent for depositing the attached amount and therefore refused to raise the attachment. Hence the Union of India has preferred this revision application.

(2.) There cannot be any doubt whatsoever that the view taken by the learned Judge about the latest reply of opponent No. 3 is not at all justified. Neither in their first reply nor in their second reply the trustees ever stated in specific term that the amount should be paid into the Court. Under the circumstances so far as the postal authorities are concerned they would be justified in taking up the position which they have done viz. that in law the amount is not liable to be attached in their hands and the question has got to be decided apart from the provisions of rule 297 referred to above. Now having regard to the provisions of section 44 of the Post Offices Act and rule 297 in my judgment it is crystal clear that a money order amount in the course of transmission in the hands of the postal authorities is at the disposal of the remitter and does not cease to be the property of the remitter and does not become the property of the payee. in spite of the amount having been handed over to the postal authorities I by the remitter the amount is liable to be recalled by the remitter at any time before the amount is paid into the hands of the payee. The remitter may either direct that the amount should be repaid to him or that the amount should be paid to some person other than the payee. If the amount had become the property of the payee on its being handed over to the postal authorities the above provisions could hardly have been made by the Legislature. It is obvious that there is no privity of contract between the postal authorities and the payee. The privity of contract is between the remitter and the postal authorities and broadly speaking it is the remitter who constitutes the postal authorities his agent for the amount being paid to the payee and so long as the agent has not carried out the instructions and fulfilled the mission the principal has the right of directing to his agent as to how the amount shall be disposed off and the agent can ignore the instructions only at his peril. Therefore both under the general law and the provisions contained in section 44 of the Post Offices Act there cannot be any doubt that the payee has no attachable interest in the amount of the money order during the course of its transmission and whilst it is still in the hands of the postal authorities. In view of my finding that neither the letter Ex.15 nor the letter Ex.18 embodies the consent of the remitter to pay the amount to the opponent No. 2 in my judgment prima facie the amount is not attachable as being the property of the opponent No.2.

(3.) Mr. Shah however contends that the true interpretation of sec. 44 and rule 297 is that the property passes from the remitter to the payee and only an option is given to the remitter to recall the amount if he so chooses and that if the remitter does not exercise the option at any time then the amount is attachable during the course of its transmission whilst it is in the hands of the postal authorities. I am unable to agree with this submission of Mr. Shah. In my judgment neither the general law nor the special provisions contained in sec. 44 aforesaid justify this submission. As already pointed out by me the payee is never in the picture at the time when an amount is remitted by the remitter by a money order through the postal authorities. The provisions contained in sec. 44 and rule 297 emphasise the position that the amount is at the disposal of the remitter and does not become the property of the payee until the mission is fulfilled by the postal authorities.