KAILASH NATH Vs. JOTI PRASAD

JUDGEMENT

(1.) This is a first appeal against an order of the learned Civil and Sessions Judge, Cawnpore by which he allowed an appeal preferred against an order of the learned Munsif. The facts are briefly these : On 2 November, 1939, one Hulli sold certain property to the appellant, Pandit Kailash Nath, for a sum of Rs. 3,000/-and left Rs. 1,400/- in his hands. The precise purpose of the deposit must be mentioned here. Hulli's brother had made certain alienations and one of them was the alienation by which the property, Hulli conveyed to Kailash Nath, had been sold. In his attempt to recover it, Kailash Nath had assisted him. This sum of Rs. 1,400 was left in the hands of the vendee for recovery of other items of property wrongfully sold by Hulli's brother.

(2.) One Joti Prasad had a decree against Hulli and he attached this sum of Rs. 1,400. Exception was taken to the attachment under Order 21, Rule 181, Civil P.C. on the allegation that he had already paid the sum to the vendor and the nature of the money in his hands did not attract the application of Order 21, Rule 131. The learned Munsif held that the attachment could not be made. On appeal, the learned Civil Judge held otherwise. Kailash Nath has come before us in appeal.

(3.) A preliminary objection has been taken to the hearing of the appeal on the ground that the order is not appealable and, at all events, no second appeal lies. In order to appreciate this contention the phraseology of Order 21, Rule 139 falls to be considered. It runs: (1) Where the liability o( a garnishee has been tried and determined under these rules, the order shall have the same force and be subject to the same conditions as to uppeal or otherwise as if it were a decree. (2) Orders not covered by Clause (1) shall be appealable as orders made in execution.