PODUGU VENKATA RAO Vs. GANDHAM MAHALAKSHMI

JUDGEMENT

(1.) The facts relevant for this petition are those. The petitioner suffered & decree in O. S. No: 235 of 1965, on the file of the District Muflsif's Court, Srika kulam. He preferred on appeal, A. S. No. 224 of 1966 to the Disrict Judge, Srikakulam. He obtained stay of execution of decree from the appellate Court on the condition that he deposited the costs. The petitioner deposited Rs. 185-30 towards costs decreed, by the judgment......schedule dated 29-10-1966 and obtained stay, of execution of the decree. The respondent-decree-holder died pending the appeal. On 27-2-1967, the petitioner filed a memo before the appellate Court giving up (he appeal on the ground that the decree-holder died and there were no legal heirs to the deceased decree holder. On that Memo, the appeal was dismissed. On 16-12-1967, the petitioner (Judgment-debtor) made an application to withdraw the amount of Rs. 185-30 deposited by him on the ground that the decree-holder died and there were no legal heirs and so he could withdraw the amount. Curiously in the application, he showed the deceased decree-holder as a party respondent without bringing to the notice of the court that the decree-holder died. The application was rejected and so this revision is preferred against the rejection of his application for withdrawal of Rs. 185-30 As the other party was unrepresented, I gave notice to the Government Pleader who placed the relevant law before me. He submitted that the money which the judgment-debtor deposited as costs to the decree-holder could not be withdrawn by the judgment-debtor as that was the money payable to the decree-holder. The learned counsel relied on Rule 172 of the Civil Ru'es of Practice before me which states thus, in so far as it is relevant :-

(2.) The learned Government Pleader submitted that this rule refers to unexpended moneys having reference to Rule 170 and not to a deposit made in court for payment to the decree-holder. The learned Government Pleader invited my attention to series of cases. Sheo Chelam Sahoo v. Rahut Hussein was a case of deposit of money and Jewellery made by the Judgment-debtors for stay of execution sale pending an appeal. The Judgment. debtor filed an application for withdrawing the deposit on the ground that the decree-holder has allowed the deposit to lie in court without claiming it formore than 3 years and the decree holder was no longer in a position to enforce the decree or to demand a transfer to him of the deposit. The Court held that the money, when the appeal was dismissed, must be taken to have been transferred to the credit of the decree-holder. The same principle was applied in Chowthmull Manganmull v. The Calcutta Wheat And Seeds Association and D. L. Saklat And Others v. Bella And Another.

(3.) The learned counsel for the petitioner places reliance on Sivaprakasam and Others v. Palaniappa Mudaliar and A P. L. M P. L. Muthuraman Chettiar v. Adaikappa Chetty And Others which have no relevance. I agree with the learned Government Pleader that Rule 172 of the Civil Rules of Practice relates to unexpended items of cash refeired to in Rule 170 of the said Rules and cannot be read so as to include the deposit in question.