RAMASAMI IYER Vs. VEDAMBAL AMMAL

JUDGEMENT

(1.) The petitioners are the decree-holders in Small Cause Suits Nos. 747 of 1928 and 1021 of 1927, of the Sub-Court, Tuticorin who obtained decree in those suits against the same judgment-debtor. The respondent obtained a preliminary decree in O.S. No. 8 of 21, of the Sub-Court, Mayavaram, for possession and mesne profits against the same judgment-debtor under Order 20 Rule 12, Civil P.C. declaring her right to the properties and ordering an inquiry into mesne profits. In execution of his decree in S.C.S. No. 1021 of 1927, money in the hands of the garnishee was attached and deposited in Court to the credit of the decree-holder in S.C.S. No. 1021 of 1927 on 2 December, 1929, In E.P.R. No. 19 of 1925 the responded had applied for attachment of the very amount under Order 21, Rule 42, Civil P.C., and the attachment had been ordered on 18 March 1925. On 14 December 1929 she filed M.A. No. 435 of 19291 for the ascertainment of mesne profits. On 25 January 1930 she filed the application out of which this appeal arises, M.A. No. 48 of 1930, for rateable distribution, under Secs.73 and 151, Civil P.C. of the amount attached in respect of future profits which have to be as certained hereafter and for which she had already filed M.A. No. 435 of 1929. The appellants who had also applied for rateable distribution opposed the respondent's application on the ground that Section 73, Civil P.C., is inapplicable inasmuch as she had not made her application to the Court before the receipt of assets and there was no application from her "for execution of the decree for the payment of money," as required under the section. The latter objection is based on the ground that an inquiry into mesne profits being a proceeding in the suit itself under Order 20, Rule 12, even though under Order 21, Rule 42, a decree-holder for mesne profits may obtain an attachment before the amount is ascertained, still to enable him to claim the benefit under Section 73 he must have filed a petition for execution after the amount is ascertained. These objections were overruled by the lower Court and rateable distribution was ordered in favour of the respondent.

(2.) The above objections have again been pressed before us. It is clear that if E.P.R. No. 19 of 1925, the application for attachment under Order 21, Rule 42, can be considered to be an application for execution, then both the objections of the appellants are answered. Order 21, Rule 42 says that Where a decree directs an enquiry as to means profits...the property of the judgment-debtor may, before the amount due from him has been ascertained, be attached, as in the case of an ordinary decree for the payment of money.

(3.) The attachment in the present case was obtained by the respondent under this rule. In Vararaghava V/s. Varada (1882) 5 Mad. 123, it was held under the old Code that the bolder of a decree for unascertained mesne profits who has applied to the Court to ascertain the amount thereof and to attach immovable property under Section 255 (corresponding to Order 21, Rule 42 of the present Code) comes within the ipurview of Section 295 (corresponding to the present Section 73, Civil P.C.) and is entitled to share rateably with the attaching creditor in the assets realised. In the course of the judgment the learned Judges pointed out that the decree held by the petitioner for mesne profits was a decree for money. Although the amount was still uncertain, the petitioner had applied to the Court to execute that decree.