S M THAKKAR MRS Vs. M A BAQUI

JUDGEMENT

(1.) This petition raises an important question relating to Court deposits but unfortunately having regard to the facts of the case it is not possible for us to decide that point finally so as to be of any help either to petitioner or to Court depositors in general.

(2.) The facts leading up to the presentation of the petition are as follows:- Petitioner entered into a contract for sale of an immovable property with two persons named (1) Mrs. Dhanbai Lallubhai and (2) Suleman Lallubhai and paid Rs. 900/by way of earnest money. Subsequently she filed Special Suit No. 5 of 1963 in the Court of the learned Civil Judge Senior Division Baroda for specific performance of that contract. At that time she paid a sum of Rs. 19 100 in cash by way of deposit to be credited to the above cause. The suit was ultimately compromised on 16th January 1965 by which the purchase price was fixed at Rs. 47 0 Petitioner having already paid Rs. 900/and deposited Rs. 19 100 in Court deposited a further amount of Rs. 27 0 on 17th May 1965 towards the above cause thus completing the sale price of Rs. 47 0 From out of the amount so lying in deposit defendants of the above special suit withdrew Rs. 35 0 on 16th June 1965. The result of all the above transactions was that a sum of Rs. 11 100 Is lying by way of deposit in the above Court to the credit of the above cause. Now it appears that during the pendency of the above litigation one Bai Jiji claiming to be an heir of one deceased Lallubhai apparently the predecessor-in-title of the two defendants in the special suit filed Suit No. 1310 of 1961 in the Court of the learned Civil Judge Junior Division Baroda for administering the properties of Lallubhai. That suit was dismissed and a regular Civil Appeal No. 433 of 1963 in the District Court at Baroda was also dismissed. Jijibai thereafter filed a second appeal in this Court bearing No. 453 of 1965. In that second appeal she got an order for stay restraining the defendants in the special suit from transferring the suit property as far as the interest of Jijibai was concerned. This order is being interpreted by petitioner as a direction that the amount of Rs. 11 100 is not to be paid to the above two defendants so long as the above suit continues. We are not concerned in the present petition as to whether this particular interpretation of the stay order is correct or otherwise. From the facts aforesaid it will be noticed that at least from 16-6-65 till upto date the sum of Rs. 11 100 is lying idle in Court and that though petitioner has performed her part of the decretal direction she is not in a position to get the sale deed executed and to recover possession of the property. From the point of view of the defendants in the above suit also it is quite clear that the amount of Rs. 11 100 is lying in Court deposit idly without earning any interest. Therefore it appears that petitioner made an application on 24 September 1965 before the learned Civil Judge Senior Division Baroda requesting that the above amount of Rs. 11 100 be ordered to be invested in the Central Bank of India Baroda Branch for periods of six months at each time. On the same day the learned advocate for defendants made an endorsement below that application stating that he had no objection if the amount is deposited as prayed for by petitioner. However in spite of such consent the learned Judge rejected the application of petitioner for depositing the amount in the above bank by his order dated 28-9-65. That order is impugned in the present petition. In support of the above order the learned Judge has relied upon an endorsement made by this High Court on the administrative side below a letter of the Legal Department bearing No. CCD. 1063/5413 dated 22nd October 1963 by which the attention of the High Court was drawn to the provisions contained in Article 284 clause (a) [sic. clause (b)]. He thought that the matter was administrative and because the objection raised by the Legal Department was endorsed by the High Court he was bound by the order made by the High Court on the administrative side. The grievance of Mr. Parghi is to some extent justified inasmuch as the learned Judge relied upon an administrative endorsement made by the High Court in a Judicial matter. The correct thing to do in such a case was for the learned Judge to interpret or to have regard to the provisions contained in Article 284(b) and then pass a judicial order. Therefore in order to dispose of the present petition we have to turn to the provisions of Article 284 clause (b) which is relevant for the purposes of the present petition. Before reading Article 284 it is necessary to refer to the provisions of Article 283 clause (2). It is well-known that the Constitution contemplates three funds (1) consolidated fund (2) contingency fund and (3) a fund the amounts of which are to be credited to the public account. We are not concerned with the first two kinds of funds in the present petition. As regards the third kind of fund clause (2) of Article 283 makes a provision. But that provision is not in respect of all amounts which are to be deposited in public account fund but it deals only with those public moneys which are to be deposited to that account. Clause (2) of Article 283 inter alia deals with (1) custody (2) payment into the public account and (3) withdrawal thereof. In regard to all these three matters in respect of public moneys which are to be paid into public account clause (2) says that these matters and all other matters connected with or ancillary to such matters shall be regulated by law made by the Legislature of the State and until provision in that behalf is so made shall be regulated by rules made by the Governor of the State. Then comes Article 284 which is as follows:-

(3.) Rule discharged. Rule discharged.