UNNAITHANAKATH PUTHAN VEETTIL KUMMAKUTTY ALIAS KUNHUTTI Vs. MUNNODATH ALIAS MANGAT MANAKKAL KARNAVAN AND MANAGER, NEELAKANDAN NAMBUDRI

JUDGEMENT

(1.) This appeal raises a question in regard to Order 21, Rule 89, Schedule I, Civil Procedure Code. If a person other than a judgment-debtor pays money into Court under that section, can he insist that the decree-holder shall not draw the sum out without furnishing security?

(2.) The facts of the case take us so far back as 1905. One Sri Devi of Mudathode Illam conveyed in jenm to Thuppan Nambudri, the brother of the plaintiff, her entire property (consisting of 140 items). The sale-deed (Ex. I) is dated 16th October, 1905 and mentions the consideration as Rs. 16,000. The purchaser by that deed is directed to pay certain specified debts of the vendor and it then provides that he shall also be bound to pay up all other lawful debts due by her. Eramutti, the brother of the 1 defendant, filed against Sri Devi, O.S. No. 561 of 1905, claiming a certain amount as due. It was to Thuppan's interteist, having regard to Ex. I, to get the suit dis missed. He accordingly fought the case on behalf of Sri Devi and, lost it in spite of his vigorous defence. As the District Munsif points out, the case was fought out up to the High Court and it was decided that the debt claimed by Eramutti was due. Thup pan then became, under the terms of Ex. I, instantly liable to discharge this decree debt. He, however, committed default and the decree remained unsatisfied. Sri Devi, as I have said, by the sale- deed completely deprived herself of all property. Eramutti, in the circumstances, followed the only course open to him, that of attaching some items bought by Thuppan. The latter thereupon preferred a claim under Order 21, Rule 58. The Court rejected it, observing that, the debt not having been discharged, the property conveyed under Ex. I remained liable. Even then, Thuppan did not honestly pay up the debt. He filed a regular suit (O.S. No. 414 of 1911) contesting the order rejecting the claim.

(3.) In the meantime the attached property was brought to sale. Thuppan applied in his suit that the sale might be stopped. On 23 October, 1911, his application was dismissed. Every dilatory method was resorted to; he next applied that the sale might be adjourned. The petition he filed (Ex. 3) contains the following significant statement: The properties obtained by me from the defendant are proclaimed. The sale must be abjourned to enable me to produce the decree amount.