CHHOTUBHAI BHIMBHAI Vs. BAI KASHI

JUDGEMENT

(1.) THIS purports to be a reference under Order XLVI, Rule 1 but in our opinion no reference lies.

(2.) THE facts of the case briefly are as follows. A suit was filed in 1915 to obtain a share in a certain cash allowance payable at the Sub-Treasury of Jalalpur in the Surat District. THE plaintiff got a decree for a sum of Rs. 9-14-0 against two defendants which amount he was held entitled to recover annually "from generation to generation. Up to the year 1931 it appears that plaintiff recovered what was due, but from 1931 to, 1938 nothing was recovered because, as we were informed, the judgment-debtors died and the names of their legal representatives were not brought on the alienation register. In 1938 the plaintiff brought a darkhast to recover the arrears and made an application under, Order XXI, Rule 52, laying claim to Rs. 69 and odd out of a sum of Rs. 182 lying in the Sub-Treasury in the names of the judgment-debtors. Order XXI, Rule 52, provides that where property to be attached is in the custody of any Court or public officer, the attachment is to be made by a notice to such Court or officer, requesting that such property may be held subject to the further orders of the Court from which the notice is issued. A notice was issued to the Sub-Treasury officer to hold the amount subject to the orders of the Court and he was further directed to send the money, but on May 12, 1939, a communication was received from the Collector of the district stating that as the money had been unclaimed for six years it was liable to forfeiture. On May 29, he wrote again saying that it had actually been forfeited with the sanction of the Commissioner. THEreafter there were further proceedings in the darkhast. A notice was sent to the Collector who appeared by the Government Pleader and objected that the only procedure open to the Court was to sell the debt or appoint a receiver for the purpose of bringing a suit on the analogy of Order XXI, Rule 46. After hearing the matter argued the learned Judge felt a difficulty as to the correct procedure and referred the following point for the determination of this Court: Whether it is open to the executing Court under Order XXI, Rule 52, to question the refusal of a public officer to pay the amount attached by a prohibitory order under Order XXI, Rule 52, if the amount was due and payable on the date on which the prohibitory order was served.

(3.) THE learned Assistant Government Pleader who appears for Government on this reference has contended that there was no further appeal and therefore the case comes within the scope of Order XLVI, Rule 1, and the reference lies. On the other hand, the learned advocate for the plaintiffs contends that the decree of this Court was subject to appeal to the Privy Council, at any rate under Clause (c) of Section 109, and therefore the reference does not lie. THE idea underlying the rule seems clearly to be to allow difficult points of law to be brought before the High Court in cases where that could not otherwise be done, e.g. where the original decree in a suit is final or where a matter has been decided in first appeal and no second appeal is provided. In execution proceedings one would have expected that the power to refer points would have been limited to cases where there is no appeal against the order of the executing Court. But that is not a possible construction of the rule. THE power depends on whether the decree to be executed is subject to appeal or not.