SAIT SIVA PRATAPA BHATTADU Vs. AELMISSION RAJAMUNDRY

JUDGEMENT

(1.) This appeal relates to the conflicting claims of the parties to money awarded as compensation for land acquired. The appellants are the fourth mortgagees of the owner of the land and the respondents are the attaching creditors of the owner and have attached the land in execution of their decrees. The fourth claimant (the first respondent) attached the land in execution of his decree on 9 October 1920. The mortgage in favour of the appellants was executed on 12 November 192l and the attachment by the seventh and eighth claimants (respondents Nos. 2 and 3) was in October 1922. The award of the Collector is dated 31 July 1922, but that does not decide the respective rights of the several claimants, but referred the question to the District Court for decision. The compensation money was not received in the District Court until after October 1922 as distinctly stated by the District Judge, although an attempt has been made to show that he was wrong. The first question raised for the appellants is that the attaching decree holders are not persons "interested in the land" within the meaning of Section 9 of the Land Acquisition Act, and it is contended that, in order to come within the definition it is necessary that the party should have some legal interest in the land. The definition in the Act, however, is as follows: "The expression person interested includes all persons claiming an interest in compensation to be made on account of the acquisition of land under this Act." This definition does not seem to contemplate that a person interested need have a legal interest in the land, because it specifically alludes to interest in the compensation to be made, and it has frequently been held that a person may be interested within the meaning, of the Act without holding any legal estate in the land, and in two cases. Chhuttan Lal V/s. Mul Chand 37 Ind. Cas. 822 : 18 P.R. 1917 : 28 P.W.R. 1917 and Galstaun V/s. Secretary of State for India 10 C.W.N. 195, it was held that a person who held an agreement for sale from the owner was a person interested within the meaning of the Act, although such. agreement creates no legal estate; and In re the Land Acquisition Act, In the matter of Pestonji Jehangir 15 Ind. Cas. 771 : 37 B. 76 : 11 Bom. L.R. 507, it was held that a person may be interested in the compensation money without having any interest in the land in the legal sense of the term. Here it is clear that an attaching decree-holder who seeks to satisfy his claim out of the land is certainly interested in the compensation that has to be paid for that land, as it is a matter of considerable importance to him that a sufficient amount of compensation should be paid in order that he may be able to satisfy his decree, and I think there can be no doubt that an attaching decree-holder is a person interested in the land within the meaning of the Act.

(2.) The next objection relates to the enforceability of the claims of the decree-holders. The District Judge has held that the alienation in favour of the appellants pending attachment by the fourth claimant was void against him, and that claimants Nos. 7 and 8 are entitled to come in before the alienee as persons entitled to rateable distribution. It is quite clear that an alienation made during attachment is void under Section 64 of the C.P.C. as against all claims enforceable under the attachment, and, in the Explanation to that Section we find that claims i enforceable under an attachment include claims to rateable distribution of assets. Under Section 73, where assets are held by a Court and more persons than one have, before the receipt of such assets, made applications to the Court for execution of decrees against the same judgment-debtor, the assets shall be rateably distributed among all such persons. Claimants Nos. 7 and 8 undoubtedly come within the meaning of this Section and they would be entitled to share in the distribution of the assets along with the fourth claimant who made the first attachment.

(3.) The difficulty, however, arises as to whether this compensation money can be deemed to be assets held by the Court within the meaning of Section 73. Under Section 295 of the C.P.C. of 1882, it was necessary that the asset should be realised by sale or otherwise in execution of a decree but under Section 73 of the new Code, there is no definite provision that the assets must be realised by sale or otherwise in execution of a decree. In the present case, it cannot be said that the money paid as compensation has, in the strict sense of the terms been realised in execution of a decree, and it has been held in Sorabji Coovarji V/s. Kala Raghunath 12 Ind. Cas. 911 : 36 B. 156 : 13 Bom. L.R. 1193 that assets within the meaning of Section 73 must be assets held in the process of execution. This view has been dissented from in this Court in Tkiraviyam Pillai V/s. Lakshmana Pillai 47 Ind. Cas. 538 : 41 M. 616 : 35 M.L.J. 150 : (1918) M.W.N. 524 and this latter case has been followed in Ghisu Lal V/s. Todermall 70 Ind. Cas. 539 : 26 C.W.N. 169 : A.I.R. 1922 Cal. 19. If it were necessary that the assets should be realised in the process of execution, it is difficult to understand why these words have been deliberately omitted from the new Section 73. It appears to me that it will be sufficient if the assets are held by a Court and are assets which may be allotted towards the satiate faction of the decree by the Court and that the manner in which they may have been realised is immaterial. This interpretation gives some force to the change of language in Section 73, which omits all reference to the method of realization. In the present case, the compensation money in the District Court when originally received ,may be said to be money belonging to the owner in the hands of the Court in its capacity as a Court of custody, and not as Court of Execution, but when the decree-holder's claim to partake in the compensation money was decided, then at least the money held must be deemed to be assets of the judgment-debtor held by the Court, for they were held from the date of the Court's award subject to the claim of the decree-holder. I am, therefore, of opinion that this compensation money comes within the meaning of "assets held by the Court" either from the date of receiptor at least from the date of the final award. Claimants Nos. 7 and 8 are entitled to coma in under Section 73, if the provisions of Section 64 are also fulfilled.