BHUPATI MOHAN DAS Vs. PHANINDRA CHANDRA CHAKRAVARTY

JUDGEMENT

(1.) This appeal arises out of a suit for a declaration that the plaintiff is the assignee from defendant 2 of a sum of money specified in the schedule attached to the plaint and as such is entitled to get the said sum from defendant 1 who realised the same in execution of a decree obtained by him against defendant 2. The plaintiff's case briefly stated is as follows:

(2.) Defendant 2, formerly a reader of English literature of the Dacca University, borrowed Rs. 4,200 on a hand-note from the plaintiff on 11 April 1926. On the same day by way of collateral security he assigned to the plaintiff his right, title and interest in his 20 years endowment policy No. 533114 for Rupees 5,000 with the Sun Life Assurance of Canada and in the provident fund money under the University of Dacca accrued and to be accrued thereafter until the debt on the hand-note would be fully liquidated. Under Clause 2, Section 2, Dacca University Act, the Governor-General in Council extended the provisions of the Provident Fund Act in 1925 by Notification No. 844 of 19 April 1927 to the provident fund constituted by the Dacca University. Defendant 1 obtained a simple money decree against defendant 2 on 16th February 1929 for Rs. 2,759-10-0 and in execution of the said decree attached the money standing to the credit of defendant 2 in the provident fund. The plaintiff preferred a claim under Order 21, Rule 58, Civil P. C, on 5 March 1929. The claim was disallowed on 22nd March 1929. Out of the provident fund money standing to the credit of defendant 2 the Dacca University deposited Rs. 2,773-11-3 in the executing Court on 11 March 1929. Defendant 1 withdrew the said sum of money on 23 March 1929. The plaintiff thereafter obtained a decree on the hand-note executed by defendant 2 in his favour for Rs. 8,383-10-1 on 25th April 1929 and in execution of the said decree realised Rs. 6,902.2.0 by attaching the balance left in the Provident Fund deposit. On 22 March, 1930 the plaintiff instituted the suit out of which this appeal arises with the following prayers: (1) that the plaintiff may be declared to be entitled to the sum of money which defendant 1 withdrew from the executing Court on 23rd March 1929 by virtue of the assignment by way of collateral security on 11 April 1926; (2) that the order dated 22 March, 1929 disallowing the plaintiff's objection be set aside; (3) that the plaintiff may be declared to be entitled to get the sum of money by way of restitution and that defendant 1 may be asked to refund the said money to Court.

(3.) Defendant 1 alone contested the suit. His defences so far as they are material for the purposes of the present appeal are: (1) that the Provident Fund money being an actionable claim, the plaintiff is not entitled to get any relief in this suit as he is a legal practitioner; (2) that the present suit is not maintainable. The Courts below have overruled the defences of defendant 1 and have decreed the plaintiff's suit. Hence this second appeal by defendant 1. The first point for determination in this appeal is whether the Provident Fund money is an actionable claim. By Section 3, T.P. Act, actionable claim has been defined as a claim to any debt other than a debt secured by a mortgage of the immovable property or by the hypothecation or pledge of movable property or to any beneficial interest in movable property not in the possession either actually or constructive of the claimant which the civil Courts recognise as affording grounds for relief whether such debt or beneficial interest be existent, accruing, conditional or contingent. The word "debt" has not been defined in the Transfer of Property Act. In Bancharam Majumdar V/s. Adyanath Bhattacharjee (1969) 36 Cal 936 it has been laid down that a debt is a sum of money which is now payable or will become payable in future by reason of a present obligation. Debt is nothing more than the benefit of an obligation to pay money. It is in law as in fact a very different thing from a sum of money in a man's own possession:... see Williams on Personal Property, 18 Edn, p. 184.