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1956 DIGILAW 259 (MAD)

C. Subramaniam v. Pakkiriswami Vandayar.

1956-08-03

GOVINDA MENON

body1956
Judgment This is an application to revise the order of the District Munsif of Tanjore in E.A. No. 369 of 1955 on his file. The contention put forward by Mr. T.S. Kuppuswami Ayyar, for the petitioner, is that the lower Court failed to exercise a jurisdiction vested in it by law by refusing to comply with the application for the issue of a cheque and that if I am satisfied that the learned District Munsif has misdirected himself with regard to the provision of law applicable then the order of the lower Court has to be set aside. The short facts which have led up to this petition are as follows:-In O.S. No. 50 of 1954 on the file of the District Munsif, Tanjore, the petitioner, Subramaniam,filed a suit for recovery of a sum of money against the respondent, one Pakkiriswami Vandayar, and pending decision obtained an attachment before judgment of certain monies due to this Pakkiriswami Vandayar from Raja Mirasidar Hospital, Tanjore. There was no dispute that there was an attachment before judgment and that it was confirmed. After the suit was decreed the petitioner applied in execution for confirmation of the attachment which had been effected prior to the decree. As a result of it, the District Munsif directed the garnishee to produce the money in Court by an order dated 20th April, 1955. In pursuance of that order the garnishee produced the money in the Court on 20th June, 1955. In the meanwhile, third parties Mayuranathan and Palani Andi had filed a suit against the same Pakkiriswami Vandayar for the recovery of sums of money by O.S. No. 14 of 1955 in the subCourt of Tanjore and pending that there was an order of attachment before judgment of the same amount. The suit was decreed on 14th June, 1955, but no execution was taken out in pursuance of the decree obtained by Mayuranathan and Palani Andi. In this state of things, when the money came to the custody of the District Munsif’s Court, Tanjore, a petition I.A.No. 283 of 1955 on the file of the Subordinate Judge’s Court, Tanjore, was filed for the raising of the attachment before judgment effected by the sub-Court. In this state of things, when the money came to the custody of the District Munsif’s Court, Tanjore, a petition I.A.No. 283 of 1955 on the file of the Subordinate Judge’s Court, Tanjore, was filed for the raising of the attachment before judgment effected by the sub-Court. The learned Judge in that order in paragraph 6 says as follows: “Inasmuch as this Court has also attached the fund in question and this Court is the superior Court, this Court is entitled to have the fund sent over to this Court”. It is on that ground that the application for raising the attachment before judgment in O.S. No. 14 of 1955 was dismissed by the Subordinate Judge. The application for the issue of the cheque was dismissed by the District Munsif relying upon the above order of the Sub-Judge. It is contended by Mr. Kuppuswami Ayyar that the learned Judge has failed to understand the implications of section 63, Civil Procedure Code, which gives the superior Court the power to adjudicate as regards claims of rival attaching decreeholders only in cases where the attachments have been in execution of decree of more Courts than one. In the present case there is no doubt whatever that the Subordinate Judge of Tanjore has not attached this amount in the possession of the garnishee in execution of the decree in O.S. No. 14 of 1955. Therefore, the order of the Subordinate Judge dismissing the application for raising the attachment would not prevent the present petitioner from asking for the issue of a cheque in his favour. If the Subordinate Judge had attached the same amount in execution of the decree in O.S. No. 14 of 1955 then that Court as the superior Court would have been entitled to adjudicate as regards the rival claims. In the absence of any attachment in execution, the order of the District Munsif sending the money to the sub-Court without issuing a cheque to the petitioner is ultra vires and without jurisdiction. The order of the Lower Court is, therefore, set aside and the District Munsif is directed to issue a cheque in favour of the petitioner by getting back the money from the sub-Court, if it had been sent there. No order as to costs in this petition. P.R.N. ----- Revision allowed. Order set aside.