Apurba Krishna Roy v. Chundermoney Debi — 1905 DIGILAW 223 (CAL)

JUDGMENT Maclean, C.J. - I agree generally in the reasoning, and entirely in the conclusion of the judgment of my brother Sale which he is about to deliver. It does not seem to me that any question of discharging the order of attachment becomes of any real importance; so far as the Appellant is concerned it has become infructuous to him. He was bound to make an application to the Court to obtain the benefit of that order; that application would properly be "a step in aid of execution" within the meaning of sub-sec. 4 of Art. 179: and as no time is fixed in that sub-section within which the application must be made, it is an application within Art. 178 and is now clearly barred. The judgment of Mr. Justice Bodilly must be affirmed with costs. Sale, J. 2. The order complained of in this case sets aside an attachment obtained by one Kissory Mohan Roy, now represented by the Appellants, in certain Government securities and cash which had been paid into Court to the credit of this suit (No. 416 of 1870) and directs the payment of the fund attached to the Respondents who were the applicants in the first Court. 3. Kissory Mohan Roy had obtained a decree on his mortgage in I the Alipore Court, dated the 4th of January 1881, against Chundermoney Dabee, the mortgagor, one of the applicants in this case, for the sum of Rs. 13,598-13-5. A certain portion of this sum, viz., Rs. 1,400 was realized in execution by sale of the mortgaged property-- and the decree was then transferred to this Court for execution--and Kissory Mohan on the 21st of June 1889 obtained the order of attachment now sought to be set aside. 4. No explanation is forthcoming of the failure on the part of the judgment-creditor or his representatives to take steps to obtain payment of the fund so attached in satisfaction of the decree. Kissory Mohan Roy died intestate in the year 1900 and his son Mokoondo Lall in the year 1901. The Appellants are the executors of the Will of the son Mokoondo Lall. 5. Kissory Mohan Roy died intestate in the year 1900 and his son Mokoondo Lall in the year 1901. The Appellants are the executors of the Will of the son Mokoondo Lall. 5. Notice of the present application is dated the 8th June 1904 and it is directed to the Appellants as the executors of the estate of Mokoondo Lall Roy and the holders of a certificate in the matter of the estate of Kissory Mohan Roy. 6. An order for payment of the fund to the applicants was made by Stephen, J., but it appearing that the notice had not been duly served on the present Appellants the application was renewed before Mr. Justice Bodilly and the present order was made on the 29th of May 1905. 7. The ground on which the applicants asked for the payment of this sum to them, notwithstanding the attachment order of the 21st of June 1889, was "that the decree of the said Kissory Mohan Roy cannot now be executed as the same is barred by the Law of Limitation." 8. The applicants, moreover, show by the 12th para, of their petition that shortly before the order of attachment they obtained in this suit au order directing payment of the fund in question to them. This order is dated the 16th of May 1889, but before payment was made thereunder, Kissory Mohan obtained his attachment order which has stopped all further proceedings since the 22nd of June 1889, the date of the attachment. Mr. Justice Bodilly thought that the applicants were entitled to payment of the fund in Court on the ground that the representatives of the judgment-creditor were barred by Art. 178 of the Limitation Act from making any application for payment out to them of the fund attached and to give effect to this order for payment, the attachment effected on the 22nd of June 1889 was set aside. 9. Doubtless if an application on the part of the judgment-creditor or his representatives for payment of the fund attached is to be viewed as "a step in aid of execution" within the meaning of cl. 9. Doubtless if an application on the part of the judgment-creditor or his representatives for payment of the fund attached is to be viewed as "a step in aid of execution" within the meaning of cl. 4 of Art. 179 of the Limitation Act, such an application would seem naturally to fall within Art. 178 as belonging to that class of "applications for which no period is provided in the Schedule to the Act or by sec.230 of the Code of Civil Procedure." 10. But the question whether such an application could be said to be a step in aid of execution would seem to depend upon whether or not the money or fund in Court of which payment was sought was money already realized in execution as the result of the attachment. 11. Monies actually realized by the Court by sale or otherwise in process of execution are held by the Court for purposes of distribution under sec. 295 of the CPC where there are more attachments than one, or for payment to the sole attaching creditor where there is no other attachment. 12. Accordingly it has been held by this Court that applications for payment out to creditors of monies realized by the Court by process of execution are not 'steps in aid of execution' within the meaning of cl. 4 of Art. 179 of the Limitation Act, so as to prevent the decree from becoming barred in respect of further execution. 13. In the case of Hem Chunder Chowdry v. Brojo Soondury Dabee ILR Cal. 89 (1881), a judgment-debtor had deposited monies in Court after steps taken in execution of the decree and it was held that an application by the judgment-creditor to take out this money was not 'a step in aid of execution' so as to prevent another application for execution made more than 3 years afterwards from being barred. In disposing of this case the Court (Morris and Tottenham, JJ.) remarked that "in no sense can an application to the Court for an order for payment of the money deposited in satisfaction of the decree be said to constitute a step taken by the Court in aid of the execution. In disposing of this case the Court (Morris and Tottenham, JJ.) remarked that "in no sense can an application to the Court for an order for payment of the money deposited in satisfaction of the decree be said to constitute a step taken by the Court in aid of the execution. Money so deposited can be taken out by the judgment-creditor years after the date of the deposit and therefore the order of payment by the Court in no way affects the question of execution." (See p. 91). The principle has been extended to monies realized by the Court by sales in execution of properties belonging to the judgment-debtor. Accordingly where a judgment-creditor having applied to take out of Court monies realized in a previous execution again appiled for further execution within 3 years of his application to take out of Court the money realized under his previous execution, it was held that the application for payment was not a step in aid of execution and did not prevent the later application from being barred. Fazal Imam v. Metta Sing ILR 10 Cal. 549 (1884). It does not appear that the authority of these cases has ever been questioned. Very large sums are held by this Court for the benefit of creditors and beneficiaries which have been paid into Court as realizations in execution of decree or under orders for payment made in administration and other suits, and it would be embarrassing if the rule were laid down that applications for payment of such monies by creditors or beneficiaries were liable to be barred by Art. 178 of the Limitation Act. 14. The only limitation applicable to these monies held by the Court as realizations is that provided by Act XXV of 1866 which enacts that monies paid into or deposited in the High Court in the course of suits and remaining unclaimed for 20 years are to be transferred and paid to Government; such monies or securities are, however, liable to repayment on subsequent establishment of claim to the satisfaction of the High Court. 15. The question then is, what was the effect of the attachment of the 22nd of June 1889. 15. The question then is, what was the effect of the attachment of the 22nd of June 1889. Did the fund so attached become, as the result of the attachment, money realized by the Court for the benefit of the attaching creditor or was any other step necessary in aid of execution to complete the realization? 16. The answer to this question must depend upon the circumstance of the attachment and the interest of the judgment-debtor in the fund attached. 17. The question is complicated by certain facts, which do not appear to have been brought to the notice of the first Court, and which were not referred to in the argument on the appeal. 18. The order of the 16th May 1889, recited in para 12 of the petition, directs that out of the fund consisting of Government securities to the value of Rs. 6,700 standing to the credit of the suit a certain creditor Kusum Kumari should be paid the amount of her judgment-debt and the costs of her attachment and that the balance should be paid out to the three Petitioners Chundermoney Dabee, Jadumoney Dabee and Nittocally Dabee. The order does not declare nor does the petition anywhere state what the respective interests of the three Petitioners were in the fund. 19. The suit, in which the order was made, was a suit for the administration of the estate of one Ramratan Banerjee the husband of the Petitioner Chundermoney Dabee and the father of the two other Petitioners Jadumoney and Nittocally. 20. The records of the administration suit have been searched but the petitions under which the fund was originally realized and ordered to be paid into Court and the subsequent order for payment out was made cannot be found. It may be that Chundermoney was entitled only to a life-interest in the fund as a Hindu widow and that the daughters were entitled to an interest for their lives as daughters on the death of the widow, but on the present materials this is merely a matter of speculation. 21. Whatever the interest of the Petitioners may be individually in this fund, the fact remains that Kissory Mohan, the judgment-creditor, obtained a decree against one only of the Petitioners, namely, Chundermoney. 21. Whatever the interest of the Petitioners may be individually in this fund, the fact remains that Kissory Mohan, the judgment-creditor, obtained a decree against one only of the Petitioners, namely, Chundermoney. On the decree being transferred to this Court for execution he applied for and obtained an order for attachment of the fund which, by the order of the 16th May 1889, was payable to the three Petitioners. Looking to the tabular statement, on which the order of attachment was made, it would appear that the order of attachment was obtained on the representation that the fund sought to be attached belonged and was payable to his judgment-debtor exclusively. The attachment therefore affected only the interest of Chundermoney Dabee in this fund. 22. The interest of the two other Petitioners was not and is not affected by the attachment for they were not parties to the suit in which Kissory Mohan obtained his decree. No decree was obtained against them nor was the Court asked to attach their interest in the fund. What then was the effect of the attachment effected by Kissory Mohan? He was clearly not entitled to ask for payment of the fund under his attachment because as would appear by the previous order for payment of the 16th May 1889 the money was payable to the three Petitioners and primd facie therefore they all had an interest in the fund. The attaching creditor under his attachment became entitled only to the interest of his judgment-debtor in the fund attached. That interest is, so far as at present appears, an undefined interest and it can only be realized by sale. The fund attached therefore is not yet a realization by the Court as a result of the attachment. The interest of the judgment-debtor in the fund cannot be realized except by sale and for this purpose a further application by the judgment-creditor would be necessary. Such further application being necessary for the purpose of realizing the interest attached, would seem to be clearly a "step in aid of execution" and as such would fall within Art. 178. As any such application in aid of the original execution has long been barred, the present attachment has become infructuous and must remain so. The attachment in question being under sec. As any such application in aid of the original execution has long been barred, the present attachment has become infructuous and must remain so. The attachment in question being under sec. 272 of the Civil Procedure Code, the property so attached is held subject to the further orders of this Court. No useful purpose can be served by continuing to hold the property in Court subject to an infructuous and ineffective attachment. This attachment may therefore be disregarded. 23. The effect of the order of Mr. Justice Bodilly is merely to free the original order for payment from a stop-order which has now become infructuous and to permit of payment being made in pursuance of the direction originally given by the earlier order. 24. For the reasons already given no bar of limitation can attach to an application by the Petitioners for drawing out the money which the Court still holds on their account. 25. The order appealed from would, therefore, seem to be right and the appeal should be dismissed with costs. Harington, J. I agree with the judgment of Sale, J.