A L A R ARUNACHALAM CHETTIAR THROUGH THE AUTHORISED AGENT GURUSWAMI AIYAR Vs. RYPRATAPASIMHA RAJAH SAHIB

JUDGEMENT

(1.) This appeal and the civil revision petition relate to the same matter, an order passed by the District Court of West Tanjore. The civil revision petition is put in by way of caution in case this Court holds that the Civil Miscellaneous Appeal does not lie. The respondents have in fact taken a preliminary objection that the Civil Miscellaneous Appeal does not lie,, but the discussion on that point is more easily set out if we deal first of all with the case on the merits.

(2.) The facts necessary for disposal are: The parties to these proceedings are some of the parties to what is known as the Tanjore Palace Estate suit, an interpleader suit filed by the Receiver of the Estate to determine who were the rightful owners. The chief contesting respondents before us are the defendants known as the Mangalavilas defendants, originally defendants. 4 to 11. A preliminary decree in that suit was passed on the 1 of July, 1918. It awarded 3/4 share to these defendants. Appeals were preferred to the High Court. While these were pending a stay petition was put in by one of the other defendants, and in his order thereon passed on the 7 of November, 1919, Krishnan, J., at the request of the Mangalavilas defendants, allowed these latter to withdraw monies deposited to the credit of the Estate in the Lower Court up to the limit of the shares due to them under the preliminary decree, but subject to security being given for the return of these monies if the High Court decree diminished their shares. Various sums of money were then drawn out under these conditions. The High Court's preliminary decree was passed on the 21 January, 1924, and it reduced the share of the Mangalavilas defendants to 3/7th. The Mangalavilas defendants had drawn monies in excess of this share under Krishnan, J.'s order and, therefore, had to refund. Now, on the 29 of January, 1923, before the preliminary decree of the High Court was passed, defendants 8, 9, 11, 25 and 26, the two latter being the legal representatives of the 7 defendant; who are some of the Mangalavilas defendants, sold a half of their right, title and interest in the property to the present appellant. At the time of the sale that half share represented 5/32 of the property. By the High Court decree that was reduced to 5/56. After the High Court decree, the suit was sent back to the District Court for final decree. In that Court, on the 27 of March, 1925, the appellant was on his application made a party to the suit as the 31 defendant. On the 16 of September, 1925, the District Court passed what it called an interim final decree, apparently on some agreement between the parties allotting his proportionate share to each. On the 21 of September, 1925, the 2nd defendant, one of the successful appellants in the High Court, applied in I.A. No. 346 of 1925 for restitution of the amounts overdrawn by the Mangalavilas defendants under the order of Krishnan, J. Instead of ordering restitution or payment back into Court, the District Court on the 25 of November, 1925, directed that the shares allotted to the Mangalavilas defendants be made subject to a charge for the overdrawn amounts, and directed further that the half share bought by the 31 defendant be also subject to this charge. This charge has been embodied in the final decree of the District Court, dated the 27 of February, 1926. It is against the order of the 25 of November, 1925, this civil miscellaneous appeal and the civil revision petition are preferred by the 31 defendant on the ground that the order errs both in law and on the merits.

(3.) The main arguments are: (1) that if the order imposing a charge at that stage of the trial of the suit, namely, between the preliminary decree and the final decree, is to be regarded as an order in the suit itself, it is beyond the powers of the Court, whose duty after the preliminary decree has been passed is only to work out the preliminary decree and not to go beyond it, that its duty is limited to delivering the shares to which the preliminary decree has declared the parties entitled, that this interim final decree and the order under appeal are proceedings unknown to law, that the Court cannot by way of an interlocutory order in the suit engraft on the preliminary decree a decision on the matter of a charge which, as being a matter concerning the rights of the parties inter se can only be lawfully decided before the passing of the preliminary decree, (2) that, if this order is to be regarded as a separate order under Section 144, as indeed it purported to be, it is ultra vires, since Section 144 applies only to matters in execution, (3) that, however the order be regarded, it has imposed a charge for the recovery of what was a mere personal obligation on the part of the Mangalavilas defendants and that the Court has no right so to convert a personal obligation into a charge by a mere interlocutory order, (4) that the Lower Court was wrong in imposing a charge until the remedy offered by the security had been exhausted, it being admitted that no attempt to enforce that has yet been made, and (5) that in any case the charge will take effect only from the date of the order, the 25 of November, 1925, and, therefore, cannot affect the property transferred on 29th January, 1923, to the 31 defendant.