(MAHANT) MURLIDAS Vs. BAIJNATH DAS-RAMNATH DAS

JUDGEMENT

(1.) In this case, it appears that the present appellant obtained judgment against his judgment-debtors in 1925 for a certain sum of money. Thereupon, he proceeded to take garnishee proceedings in respect of a sum belonging to the judgment-debtors with the Allahabad bank. In August 1928, the bank was ordered to pay that sum of money into Court, and on 20 August, the bank deposited that money with the Sheriff, Thereupon, certain proceedings were started by the judgment-debtors to restrain the plaintiff from executing his decree. The judgment-debtors set up that it was a fraudulent decree and, for some reason which I do not appreciate, obtained an order stopping the execution proceedings for a period of two months, the money being ordered to remain in the hands of the Sheriff. Within the two months, the judgment-debtors were ordered to institute proceedings to have the fraudulent decree set aside. As a matter of fact, they never instituted any such proceedings. Then, on 24 August, some days after the money had been received by the Sheriff, the respondent before us brought a suit on three promissory notes and made an application for attachment before judgment of this money in the hands of the Sheriff. He got an order for attachment before judgment on 30 August and on 13 September, he appears to have obtained an ex parte decree. On this, he proceeded to levy execution, getting an order for execution on 27fch November. On 29 November the plaintiff applied in his suit and got an order for payment out to him of the money in the hands of the Sheriff. Thereupon, the present respondent applied to the learned Judge, attacking that order, and the learned Judge set aside that previous order and made the order which is now under appeal before us.

(2.) The learned Judge may or may not have intended to decide the question as to the respondent's right to rateable distribution; but the order which he made merely set aside the ex parte order previously made by him in favour of the plaintiff and directed that the Official Referee should hold an enquiry and report as to who, under the provisions of Section 73 of the Code, were entitled to share in the same fund and in what proportion; so that the actual order pronounced by the learned Judge in no way decided finally or otherwise the rights of the respondent and the appellant inter se. The minute of the proceedings before the learned Judge is to this effect: Order for rateable distribution. Counsel certified. Previous for payment out sat aside.

(3.) It appears to me that, whether or not the learned Judge was of opinion that the present respondent was likely to succeed before the Official Referee in establishing his claim to rateable distribution he did not finally decide that point. As the matter however is a complicated one and has been argued before us, I propose to state my opinion on the question. As the matter will have to be decided by the Official Referee, it is just as well to give him what assistance we can.