VISHNU DHONDDEV PALKAR Vs. RAMPRATAP DAULATRAM MARWADI

JUDGEMENT

(1.) The petitioner filed Suit No. 71 of 1916 in the Subordinate Judge s Court at Satara against one Kondanmal and applied for attachment before judgment. The attachment before judgment was granted and the property being of a perishable nature was sold and the sale proceeds, viz., Rs. 420, were paid into Court to the credit of the suit. Eventually a decree was passed in the suit on the 10th of April 1916. The plaintiff should then have applied for execution, but it was not necessary to apply for a re-attachment of the property, because after the decree was passed the property remained in detention Then the opponent, who had previously got a decree against" the same defendant, applied for execution on the 7th of April and asked that the sale proceeds, which were lying in Court to the credit of the petitioner s suit, be attached. That he could do under Rule 10 of Order XXXVIII. The opponent s application for attachment was heard on the 12th of April and an order was made for attachment. On the 19th of April the opponent obtained an order for payment and the money was paid to him. The petitioner meanwhile had not applied for the execution of his decree as he had not got a copy of the decree. Then he brought Suit No. 779 of 1916 against the opponent to recover the amount of Rs. 174-5-0 which he said he would have got out of the moneys attached if there had been rateable distribution. His suit has been dismissed by the learned Subordinate Judge and also by the District Judge in appeal.

(2.) The question before us is, whether there has been any material irregularity which would entitle us to interfere in revision. No doubt on the face of it, it seems a very hard case, and if the attaching Court had clearly done what it ought not to have done, or left undone what it ought to have done, and the lower Courts in the present suit filed by the petitioner had failed in their duty to observe that, then it might be said that there was a material irregularity which would entitle us to interfere. But although it may be said that the attaching Court, before it paid out the proceeds of the petitioner s attachment to the opponent, ought to have given the petitioner notice as a matter of equity, still I cannot see anything in the Code which makes it necessary for the attaching Court to give such notice. Until the petitioner applied for attachment, no doubt the money was lying in Court, detained for his benefit, but still available for any decree-holder of the same defendant. If a decree-holder applied for attachment of those moneys which were being detained, the Court, was bound to grant such an application. If the Court had given notice to the petitioner, and he had made an application for the execution of his decree, the Court might then have said that he was entitled to rateable distribution. It seems to me that the petitioner, having got his decree, failed to observe that there was a risk of his losing the fruits of his attachment. He did not apply to the Court at once to confirm the previous attachment, in other words, he did not apply for the execution of the decree, so as to make his position secure. I cannot say therefore that there has been any material irregularity in the proceedings of the lower Court in dismissing the petitioner s suit. The rule, therefore, will be discharged with costs. Fawcett, J.

(3.) I agree. But I think the case suggests the advisability of a rule being made under the powers conferred on the High Court, requiring a Court in such a case to issue notice to the person at whose instance the property sought to be attached is already under attachment before judgment prior to directing a disposal of such property in execution of a decree.