A B GURUMURTHI CHETTY Vs. SELLA PERUMAL PILLAI

JUDGEMENT

(1.) This revision petition arises out of an order passed by the District Munsif of Trichinopoly, directing the arrest and imprisonment of the petitioner for a period of two months. The circumstances which led to that order are as follows : The petitioner was the defendant in O.S. No. 728 of 1933 which had been instituted against him for the recovery of a sum of money. Soon after the filing of the suit, the plaintiff applied for attachment before judgment of a certain sum of money lying with the Public Works Department to the credit of the defendant. In that connexion the defendant filed an affidavit on 29 November 1933 undertaking to draw the bill amount and to deposit the same in Court pending disposal of this petition without utilising it for his other purposes. The plaintiff was not prepared to accept this under-taking because he was not sure what the defendant would do once he drew the money. That this apprehension was well-founded is shown by the events that have subsequently happened. When the attachment application came on for orders before the Court on 29 itself, it appears that the defendant's vakil modified the undertaking in the affidavit and substituted an undertaking not to draw the cheque amount pending further orders of the Court on the petition. The vakil took care to add that as the party was not present in Court then, this undertaking was given by him under instructions from the party. The Court recorded the undertaking and on 21 December 1933 an order was passed in the following terms : " Pleaders heard. Not pressed in view of the undertaking already given by defendant. Dismissed."

(2.) I may at this stage dispose of a contention advanced by Mr. Narayanaswami Iyer on behalf of the petitioner that the undertaking given by the defendant or his vakil could enure only pending the disposal of the attachment petition and with the dismissal of the petition on 21 December 1933 the undertaking itself came to an end. I am unable to accept this contention because it will not be a reasonable or even an intelligible construction of the order. The natural meaning of the order is that an attachment is not necessary because of the undertaking given.

(3.) The defendant had applied for leave to defend under Order 37, Civil P.C. As the Court was prepared to grant leave only on condition of the defendant giving security and as the defendant pleaded absence of means to give security, the plaintiff's pleader was willing that the Court should modify the order of 21 February 1933 to this extent : that the defendant might apply to the Public Works Department authorities to send to this Court the amount standing to the credit of the defendant with them. This order was passed on 8 February 1934. Taking advantage of this indulgence, the defendant drew the money from the Public Works Department authorities and disbursed it to meet what he considered an urgent demand; and on 19 February he made up his mind to file an application to modify the order granting leave. I can only characterise this as an unfortunate step as I do not wish to use any harsher language. In due course this later application was allowed to be dismissed for default.