MOIDIN ROWTHAN Vs. DAKSHAYANI AMMA

JUDGEMENT

(1.) THE petitioner filed S.C. No. 460 of 1935 against a debtor and attached before judgment some money that was in the hands of a garnishee. Some time later, the petitioner obtained a decree - we do not know its exact date, but it is said that it was some time before 7 March 1936. He did not take out execution of this decree. THE respondents obtained a decree in S.C. No. 440 of 1935 against the same debtor, and in execution they also attached on 26 November 1935 this same sum of money in the hands of the garnishee. That money was paid into Court on 3 March 1936, and upon an application by the respondents, the money was paid to them on 7 March 1936. THE petitioner thereupon filed M.P. No. 590 of 1936, praying that the Court should recall the sum of money paid over to the respondents and distribute it rateably between them. That petition was dismissed by the Subordinate Judge of Palghat, and hence this revision petition. THE petitioner's contention is that he was entitled to a share in the money that had been paid into Court by the garnishee and that the lower Court acted illegally in paying that money over to the respondents. I contends that the Court was bound to see that the money was properly distributed among those who had a claim to it. As proof that such a duty is cast upon the Court, he refers to Secs.63 and 64, Civil P.C. Section 63 only indicates that the Court should adjudicate upon questions of this nature, and Section 64 explains the effect of an attachment. Neither of these sections indicates that the Court should suo motu ascertain who are the various claimants to a particular sum of money and then to divide that money among the persons who are entitled to a share of it. Section 73 runs: Where assets are held by a Court and more persons than one have, before the receipt of such assets, made application to the Court for the execution of decrees for the payment of money passed against the same judgment-debtor...the assets...shall be rateably distributed among all such persons.

(2.) SO that it is clear that the Court can only divide the assets among such persons as may have made application to the Court for the execution of decrees. The present petitioner made no such application. He contends that his attachment before judgment becomes by some legal fiction an attachment in execution, lie states as authority for this unusual proposition a decision of a Pull Bench of this Court in ( 24) 11 A.I.R. 1924 Mad. 494. What the Court there held was that "property attached in execution" in Order 21, Rule 57, Civil P.C., includes property attached before judgment, when there has been a decree followed by an execution petition for the purpose of bringing the property attached to sale. This judgment does not say that proceedings taken before execution can be deemed to be proceedings taken after execution but it only says that property attached before judgment may be considered to be property attached in execution when it is followed by an execution application for the purpose of bringing the attached property to sale. As the petitioner has put in no such application, the above decision has no application to this case. This revision application could have been dismissed on the simple ground that the petitioner had a remedy by way of a suit afforded to him by Section 73(2); but a decision on the point raised in the Court below has been given in order to avoid further litigation. The revision petition is accordingly dismissed with costs.