C D M HINDLEY Vs. JOYNARAIN MARWARI

JUDGEMENT

(1.) In this case I am asked under Section 115 of the Civil Procedure Code to set aside an order made by the Small Cause Court on 23rd November 1918. That order is as follows: "Payable in two weeks. In default execution to issue."

(2.) The action was tried in the Court of the 2nd Munsif at Monghyr. The plaintiffs in 1914 lent Rs. 200 on a promissory note to the defendant s son who Was an employee of the E.I.R. and who died on the 27th September 1916 leaving neither widow nor children. So far as the parties know he left no will and neither Probate nor Letters of Administration have been granted to anyone in respect of his estate. The plaintiffs in 1917 applied as creditors to the District Judge at Monghyr for a grant of administration but their application was dismissed. In these circumstances the action was brought against the defendant apparently as being "the heir at law and legal representative" of his son. As appears by the Munsif s decree of 29th January 1918 the suit was decreed with costs. There is nothing on the face of the decree to show that it is not an ordinary personal judgment against the father or to limit execution thereon to the property of the deceased. Both before and during the trial the plaintiffs and defendant seem to have litigated between themselves, the question whether the money standing to the credit of the deceased with the Provident Institution of the E.I.R., was attachable for the debt in view of Section. 4 of Act IX of 1897 as amended by Act IV of 1903. The Munsif and on appeal the District Judge both held that it was attachable for reasons which I am unable to appreciate.

(3.) On the 18th July 1918, the Munsif s decree was transmitted for execution to the Small Cause Court at Calcutta. This court has treated the decree as one against the deceased s estate which is at all events in substance correct. On 1st August a prohibitory order, in the form specified by Order XXI, Rule 52 of the Code, issued to the Manager of the Provident Institution, as being a public officer, and not to the Trustees who are I think the only proper parties. It was returned with a reference to the Act. After some correspondence on the 23rd September a notice was issued from the Court to the Manager requiring him personally to appear and show cause "why the money attached, in his hands by a prohibitory order, dated 1st August 1918 should not be deposited in Court or in default why execution should not be issued against him." The matter ultimately came before a Judge on the 23rd November 1918 and as to what happened then there is no dispute between the parties. The respective attorneys argued the question whether Provident Fund moneys were or were not attachable in view of the Acts abovementioned in the case of a depositor who had died leaving neither widow nor child. No evidence was taken: nor indeed was there need of any, in view of the entire absence of any intention to dispute the facts about the nature of the Institution or of the fund in question. No issue was directed. The subject matter of the attachment was denned by the notices "certain money now in your hands, viz., Rs. 1,182-2 out of the Provident Fund money due to the deceased H.W. Lakin." The learned Judge has given no statement of his reasons, but he has held this money to have been validly attached by the notice of the 1st August and has ordered execution--presumably against the Manager, possibly against the institution to issue in default of payment.