THAKURDAS MOTI LAL Vs. JOSEPH ISKENDER

JUDGEMENT

(1.) This is an appeal from a judgment of Mr. Justice Chaudhuri, whereby he granted the application of Joseph Iskender. That application was made asking for an order that the Comptroller-General of Accounts for the time being of the Government of India and the Secretary and the Treasurer for the time being of the Bank of Bengal with the privity of the Accountant-General of this Court do out of the funds standing to the credit of this suit (No. 617 of 1915), viz., Rs. 29, 894-5-11 pay to the plaintiff the sum of Rs. 16, 519-7-0, being the decretal amount due to him under the decree made in this suit, dated 16th December 1915, with interest.

(2.) One of the points which has been raised in the course of the argument is in my judgment of considerable importance, and in order that it may be correctly appreciated, it is necessary to look at the facts carefully and in some detail.

(3.) The facts, as stated by the learned Counsel for the appellant, Mr. Sarkar, in opening the appeal and which, it is agreed, are not disputed are as follows:---It appears that on the 14th of August 1915 the appellants, Thakurdas Motilal, the names under which they carry on business, obtained a decree for Rs. 14, 842 12-6 against one Kally Churn Sett. At sometime or other---the date of which is not material---a decree was made in a mortgage suit against the said Kally Churn Sett, and certain property which was comprised in the mortgage was on the 11th of December 1915 sold for the sum of Rs. 1,63,500. The sum of Rs. 41,000 was paid on the day of the purchase by the purchaser, as a deposit made to the Registrar of the Original Side of the High Court. On the 16th of December 1915 the respondent in this appeal, Joseph Iskender, obtained a money-decree for Rs. 16,519-7-0, against the said Kally Churn Sett. On the 13th of January 1916, the respondent Joseph Iskender obtained an order for attachment of moneys to the extent of Rs. 17,300 out of the above-mentioned purchase money of Rs. 1,63,500. The application upon which that order was made was as follows: "I pray that the total amount of Rs. 16,519-7-0 together with interest on the principal sum up to date of payment and the costs of the suit and the costs of taking out execution be realised by attachment to the extent of Rs. 17,300 in the hands of the Accountant-General of this Honourable Court payable to the defendant out of a sum of Rs. 1,63,500, representing the sale proceeds of the defendant s immoveable properties sold by the Registrar of this Honourable Court on the 11th December last in execution of decrees, dated respectively 17th February 1911 and 1st March 1912, made in Suit No. 1144 of 1910 of this Court Raja Sreenath Roy v. The Defendant in this suit and the amount be paid to me." The order which was made upon that application by the Registrar on behalf of the Court was in these terms, and it was addressed to the Accountant-General of the High Court, Original Side. "Sir,---The plaintiff haying applied under Order XXI, Rule 52, of the Code of Civil Procedure for an attachment of the money now in your hands* to the extent of Rs. 17,300 payable for the defendant out of a sum of Rs. 1,63,500, representing the sale proceeds of the defendant s immoveable property sold by the Registrar of this Court on the 11th December 1915 in execution of decrees, dated respectively the 17th February 1911 and 1st March 1912, made in suit 1)44 of 1910 of this Court Raja Sreenath Roy v. The, Defendant in this suit. I am directed to request that you will withhold the said money subject to the further order of this Court--- (Sd.) J. H. Hechle, Registrar."