VENKATARAMA AIYAR Vs. ESSUMSA ROWTHEN

JUDGEMENT

(1.) I have read the judgment which my learned brother is about to deliver and I concur with regard to the question whether the plaintiff has a lien on the money in deposit in the Munsif's Court. It seems to me, on further consideration, that the view taken in the judgment of this Court to which I was a party in Singaravelu Udayan V/s. Ramayer (1903) 13 M.L.J. p. 306 was wrong, and that it is not supported by the decision in Gunney V/s. Seppings (1846) 15 L.J. (Ch,) 385 to which reference is made in the judgment.

(2.) I think the decree of the Courts below should be modified in the manner indicated in the judgment of my learned brother, and that the respondents should pay the appellants costs throughout. Krishnaswami Aiyar, J.

(3.) The 1 defendant mortgaged the decree in O.S. No. 254 of 1891, against defendants Nos. 2 to 9 on the file of the District Munsiff of Mannargudi, to the plaintiff. The mortgage deed is dated the 3 of November 1904., The 10th defendant who had obtained a Small Cause decree against the 1 defendant on the file of the Subordinate Judge's Court of Tanjore attached the decree in O.S. No. 254 of 1891 under Section 273 of the Civil Procedure Code of 1882. This order of attachment was received by the Mannargudi Munsiff on the 3 of November, i.e., the same day as the date of the mortgage. Defendants Nos. 11 and 12, other decree-holders against the first defendant, attached the (said decree subsequently to the plaintiff's mortgage, in execution of their respective decrees. The 10th defendant having afterwards withdrawn the attachment, the 1 defendant executed his own decree in O.S. No. 254 of 1891 and realised the sum of Rs. 801 which was kept in deposit to the credit of that cause in the District Munsiff's Court of Mannargudi. The plaintiff's suit is for the recovery of his mortgage amount from the amount in deposit. Both the Courts below have concurred in dismissing the suit, as against the money in deposit. The 1 question for decision is whether Section 244 of the Civil P. C. of 1882 bars the suit.. It is contended for the respondent that the plaintiff is the assignee of the decree-holder in O.S. No. 254 of 1891 and is bound therefore to apply in execution of that decree for the realisation of the amount due under it and cannot institute a separate suit. It is unnecessary to consider for the purposes of this case whether a mortgagee of a decree is an assignee within the meaning of Section 232 of the Code of Civil Procedure, 1882. There can be no doubt, however, that as mortgagee he can sue his mortgagor for the sale of the mortgaged property (see A.A.O. Nos. 107 to 109 of 1906) and the purchaser may then proceed to execute the decree which he has purchased. The present suit, it must be remembered, is not for the realisation of the amount due by the judgment-debtors of the 1 defendant but for recovery of the plaintiff's claim from the amount in deposit to the credit of the 1 defendant in O.S. No. 254 of 1891. The questions arising between the plaintiff and the 1st defendant or those arising between the plaintiff and the 10th, nth and 12th defendants are not questions arising between the parties to the suit No. 254 of 1891 or their representatives. Section 244 of the Civil P. C., 1882, cannot therefore bar the present suit.