KANU CHARAN MOHANTI Vs. BISWANATH KHAITAN

JUDGEMENT

(1.) This rule is directed against an order passed by the learned Subordinate Judge, Third Court at Alipore, under Sec. 63 of the Code of Civil Procedure.

(2.) The facts giving rise, to the present application are not in dispute. Gne Biswanath Khaitan obtained a decree against H.P. Periera and put that decree into execution in Money Execution Case No. 27 of 1966 in the Court of the Subordinate Judge, Third Court "at Alipore." The present Petitioner Kali Charan Mohanti also obtained a decree against Periera before the learned Judge of the Small Cause Court at Sealdah. In the meantime, insolvency proceedings were started against Periera and certain sums of money were lying in deposit with the Receiver appointed in that insolvency case in the Court of the learned Subordinate Judge, Fourth Court at Alipore. The Petitioner prayed for attachment of the money lying in the hands of the Receiver and this attachment was given effect to on May 31, 1966. This was done before the learned Judge of the Small Cause Court at Sealdah. Biswanath had also applied for attachment of the salary of Periera and also for attaching the money lying in the hands of the aforesaid Receiver before the learned Subordinate Judge, Third Court at Alipore. The learned Subordinate Judge allowed that prayer. The writ of attachment under Order 21, Rule 52 of the Code of Civil Procedure is dated. June 3, 1966, and the learned Subordinate Judge, Fourth Court, to whom it was sent endorsed on the margin of this writ, that "the amount deposited in Insolvency Case 132/65 has been attached on May 31, 1966, in favour of D.H. of Small Cause Court Ex. Case No. 784 of 1966 of Small Cause Court Judge, Sealdah. So no action can be taken on this prohibitory order." Thereafter, Biswanath applied to the learned Subordinate Judge, Third Court, Alipore, for ratable distribution of the money that was realised in the Small Cause Court, Sealdah. It appears also to be a fact that the money which was lying with the Receiver was sent to the learned Judge, Small Cause Court at Sealdah, sometime in July 1966, that is "to say, after the aforesaid endorsement had been made by the learned Subordinate Judge, Fourth Court. The Petitioner Contended before the learned Subordinate Judge, Third Court, that that Court had no jurisdiction to entertain the application for ratable distribution and that was within the jurisdiction only of the learned Judge of the Small Cause Court at Sealdah. The learned Subordinate Judge refused to uphold this objection and overruled it and dismissed the petition of objection filed by the present Petitioner. Hence, this application.

(3.) Sec. 63 of the Code of Civil Procedure presupposes that the property in question must be under attachment in execution of decree of more Courts than one. Mr. Santi Pada Chakravorty, the learned Advocate appearing on behalf of the Petitioner, submits that in this case as the learned Subordinate Judge, Fourth Court, refused to take any action on the writ of attachment, there has not been an attachment by the learned Subordinate Judge, Third Court, of the money lying in the hands of the Receiver and, accordingly, Sec. 63 would have no application. Under Rule 52 of Order 21 of the Code of Civil Procedure where the property to be attached is in" the custody of any Court or Public Officer, the attachment shall be made by a notice to such Court or Officer, requesting that such property, and any interest or dividend becoming payable thereon, may be held subject to further orders of the Court from which the notice is issued.