K TIRUVANGADIAL Vs. RCHINNASWAMIAN

JUDGEMENT

(1.) I think that as regards the claim to rateable distribution this case is governed by the decision of the appellate Court in O.S.A. 22 of 1909 (unreported). In that case there were numerous attachments from the Small Cause Court of a fund in Court and I directed the first attaching creditor in point of time to be paid in full and disallowed a claim for rateable distribution by the other attaching creditors. The appellate Court affirmed this order merely r emarking that: "The fact that a fund is attached by a Court does not constitute the fund assets held by that Court within the meaning of Section 73." I hold therefore that the 1st attaching creditor is entitled to be paid in full out of their fund. The fund in Court consists of the surplus sale proceeds payable to the defendant mortgagor after sale under a mortgage decree. The money was paid into Court by the auctioneers on 27--3--13 and was subsequenty attached at the instance of the present applicant. The attachment at the instance of the opposing creditor was made before the money had been paid into Court and therefore before there was any property in the custody of the Court within the meaning of Order 21, Rule 52, and was therefore bad. Tulaji v. Balabhai (1896) I.L.R. 22 B. 39. It has been argued that as this attachment was made after the decree for sale of the mortgaged property the provisions of the rule are satisfied, but I am unable to accept the contention, as the property to be attached within the meaning of the rule in this case was this particular fund and this was not in the custody of the Court at the date of the attachment in question. Payment out as prayed with costs against the opposing creditor.