Judgment :- 1. This is an application filed under Or. 14, R. 8 of O.S. Rules read with S. 151 C.P.C., praying to set aside the ex parte order dated 26-2 1988 made in Application No. 3070 of 1987 directing the Registrar, City Civil Court, Madras, to transfer a sum of Rs. 30,268. 76p. lying in the credit of O.S. No. 1868/85, City Civil Court, Madras. 2. In the affidavit filed in support of the application it has been submitted that the applicant is the plaintiff in O.S. No. 1868 of 1985 on the file of the VIII Assistant Judge, City Civil Court, Madras, and a decree had been obtained in that suit and Execution petition No. 1854 of 1986 was filed in that suit, and in obedience of the order passed the garnishees have deposited a sum of Rs. 30,268-50. in the credit of the above suit. Thereafter Application No. 2713 of 1987 was filed for obtaining a cheque for the said amount. Meanwhile the judgment-debtor had filed C.S. No. 296 of 1987 along with the application No. 3070 of 1987 wherein the Judgment-debtors brother has succeeded in obtaining the ex parte orders for transfer of the amount of Rs. 30.263. 50 to the credit of C.S. No. 296/87. The applicants petition E A. No. 2713/87 for obtaining the cheque which was kept pending is likely to be dismissed. According to him; Application No. 3070/87 is not maintainable, since in the suit O.S. No. 1868/85 as well as in E.P. No. 1854 of 1986, V. Sudhakar was not a party at all and his brother V. Ramaiah is the partner of Vummidi Ramaiah Chetty Guru-samy Chetty and sons and he is the Judgment-debtor in O.S. No 1868 of 1985. 3. This application is filed to give a direction to the respondent V. Sudhakar and V. Ramaiah to pay the amount, otherwise a direction to the X Assistant Judge, City Civil Court to order E.A. No. 2713 of 1987 for payment out of Rs 30,268. 76 be considered, otherwise the applicant will be put to irreparable loss and injury. Hence, it has been prayed that the ex parte order made in Application No 3070 of 1987 dated 26-2-1988 directing the Registrar, City Civil Court, Madras, to transfer a sum of Rs. 30,268. 76p now lying in the credit of the suit O.S. No. 1868 of 1985 be set aside. 4. Hence, it has been prayed that the ex parte order made in Application No 3070 of 1987 dated 26-2-1988 directing the Registrar, City Civil Court, Madras, to transfer a sum of Rs. 30,268. 76p now lying in the credit of the suit O.S. No. 1868 of 1985 be set aside. 4. The application has been opposed by the respondent contending that the application is not supported by an affidavit in the proper form and hence the application is not a proper one, and further the relief prayed for cannot be granted. According to paragraph 6 of the affidavit it has been made clear that there had been abuse of process of the Court to attach the money legally due to the respondent and and not to the judgment-debtor through garnishee proceedings. There is no whisper in the affidavit that the amount attached by the applicant was in any way due to the judgment-debtor V. Ramiah. The amount due to the respondent was illegally attached and the garnishee was asked to deposit the said amount in the City Civil Court. The application was filed for transferring the amount in C.S. No. 296/87 and an order had been passed. There had been number of creditors and after filing of the suit he had been able to clear the debts of others and the amounts claimed by Insolvency petitioners had been paid and hence the amount had been directed to be transferred to this Court to be paid duly to the creditors. Hence the application has to be dismissed with costs. 5. The point that arises for consideration in this application is as to whether the ex parte order passed in Application No. 3070/87 in C.S. No. 296/87 dated 26-2-1988 has to be set aside? 6. Application No. 3070/87 had been filed by V. Sudhakar, the respondent in this application. The applicant herein who is a creditor of Vummidi Ramaiah Chetty Guru-sami Chetty and Sons filed the suit O.S. No. 1868/85 and had obtained the decree and E.P. No. 1854 of 1986 was also filed seeking prohibitory order against the tenants Vummidi Ramaiah Chetty and Gurusatni Chetty sons. The applicant herein who is a creditor of Vummidi Ramaiah Chetty Guru-sami Chetty and Sons filed the suit O.S. No. 1868/85 and had obtained the decree and E.P. No. 1854 of 1986 was also filed seeking prohibitory order against the tenants Vummidi Ramaiah Chetty and Gurusatni Chetty sons. As per the direction given the amounts had been deposited stating that there are number of other creditors who have filed the suits and execution petitions and in such circumstances the third party who had obtained orders from the Court cannot appropriate the amounts deposited in satisfaction of the decree, since all the creditors who have obtained the decree are entitled to pro-rata distribution, and the third party (applicant herein) to whom notice had been given under O. 1, R. 8, C.P.C., will also be paid his dues under the decree which had been obtained against V.R.G. & sons and the amount deposited in the City Civil Court to be deposited into this Court to the credit of the suit. In the said application M/s. Devaraj Nansee and company was the respondent and notice had been served and since there was no representation, ex parte order had been passed by learned Justice S.T. Ramalingam on 26-2-1988. Subsequently the present application has been filed by the third party. It is to be stated that a proper reading of the affidavit filed by the applicant will disclose how the suit had been filed and the decree has been obtained and subsequently in pursuance of the decree. Execution Petition also had been filed and there had been an order in E.P. No. 1854 of 1986 directing Garnishees to deposit the sum of Rs. 20,268. 50. 7. It may also be relevant to point out that the respondent herein who filed Application No. 3070 of 1987 in C.S. No. 296 of 1987 to send for the amount had filed E.A. No. 3537 of 1985 under O. 21, R. 58, r/w S. 47 and 151, C.P.C., claiming the said amount in the Execution petition before the City Civil Court and subsequently there had been a compromise entered into wherein it has been stated that the claim-applicant had no objection for the decree-holder to attach the licence fees of Rs. 4700 payable by the 7th Garnishes, Tamil Nadu Handlooms to him mentioned in the pro-order till the disposal of E.P. No. 2011/85 along with the future interest and the decree-holder agreed that the licence fees of other shops mentioned in the pro-order to be raised. The present respondent has not disclosed the said compromise order thereby depriving the applicant realising of the amount. It may also be pointed out that after the suit O.S. No. 1869 of 1985 was decreed, the attachment made in I.A. No. 4897 of 1935 had been made absolute. They were so made long before the filing of the suit C.S. No. 296/87. The attachment was made absolute on 9-7-1985. Subsequently, as stated earlier, E.A. No. 3538/85 has been filed and that application ended in compromise. So without reference to the order passed in the Claim Petition the amount held in deposit in the suit O.S. No. 1868/85 has been directed to be deposited into this Court to the credit of C.S. No. 296/87. Having regard to the decree obtained by the applicant against the partner of Vummidi Ramaiah Chetty, Gurusamy Chetty and Sons, whose liability is not disputed by the respondent also in Application No 3070 of 1987 and inasmuch as the attachment had been made absolute, I find that the ex-parte order that had been passed in Application No. 3070 of 1987 is liable to be set aside. 8. The learned counsel for the applicant submitted the following decisions also in support of his contentions: Janaki Nagaswami Iyer v. T.S. Ramaswami Iyengar 1 . Ramiah Aiyar v. Gopalier 2 and The Official Assignee, High Court, Madras v. Kantiayalal Sharma 3 . 9. In the decision reported in Janaki Nagaswami Iyer v. T.S Ramaswamy Iyengar 1 it has been laid down by a Division Bench of our High Court that where property is attached before judgment, but is released on the defendant giving s curity, the security comprising certain items of the attached property; the plaintiff on obtaining a decree is entitled to a preferential right and can execute tne decree against the property given as security. 10. In the decision reported in Ramiah Aiyar v. Gopalier 2 . 10. In the decision reported in Ramiah Aiyar v. Gopalier 2 . it has been laid down that where the defendant was arrested be fore judgment and was ordered to be releas ed from custody on depositing in Court a sum of money sufficient to meet the plain tiffs claim in the suit under O. 33, R. 2 of the C.P.C., and when there was subsequently an attachment of the money by a decree-hol der on adjudication of the defendant as an insolvent, the money was paid into Court to the general credit of the action and charged with a lien in favour of the plaintiff on the latter obtaining decree in his favour and the attaching creditors and the Official Receivers claims were subject to that lien. 11. In the decision reported in The Official Assignee, High Court, Madras v. Kantiayalal Sharma 1 rendered by learned Chief Justice Ramaprasada Rao, J. the learned Chief Justice has laid down that in a case where there is an order of attachment and subsequently there was leave for leading defence and the plaintiff gave no objection in view of deposits made by the defendant in the Court and subsequently the defendant was adjudged insolvent during pendency of the suit, the Official Assignee could not claim the amount. On the other hand, the plaintiff would have lien over that amount till the decision of the suit. 12. The learned counsel for the respondent relied on the following decisions; Errikulappa Chetty v. Official Assignee. Madras 2 . That was a decision by a Division Bench consisting of Chief Justice and another learned Judge and the learned Judges have held as regards money paid as security for avoiding attachment, that money was merely paid as security for the production of the property and to render attachment unnecessary, the plaintiff did not acquire a charge on it and could not claim it in preference to the Official Assignee in whom the entire property of the defendant vested on his becoming an insolvent. 13. Gopalaiyar v. Tiruvengadam Pillai 3 . 13. Gopalaiyar v. Tiruvengadam Pillai 3 . In that decision relating to a condition of deposit of security for satisfaction of the decree that may be passed against the defendant, while setting aside the decree, it has been held that where the decree in a suit on a promissory note under the summary procedure prescribed by O. 37 of the C.P.C. is ordered to be set aside on condition of the defendant depositing security for satisfying any judgment that may be passed against him, the decree amount must be regarded as being charged on money deposited as security in pursuance of the order and the Court cannot hold an enquiry as to whether the amount so deposited really belongs to the defendant or not. 14. Roop Chand v. Gulzari Lal 4 . That case related to a deposit made by a tenant in a Rent Control application. It was held therein that a sum of money deposited in Court under the provisions of S. 9 of the Rent Control Act is not liable to attachment in the execution of a decree. In that case the amount was directed to be deposited for arrears that were pending adjudication, but when arrears were deposited, the deposit was sought to be attached by the same landlord for prior arrears and in that action the said attachment had been given. 15. I have carefully considered the principles laid down in the decisions relied on by either side. It may be pointed out having regard to the facts in the case the applicant had obtained a decree against one of the partners of Vummidi Ramiah Chetty and Gurusamy Chetty & sons. Garnishee order also had been obtained and amounts were also deposited. There had been attachment of the amounts and attachment was made absolute. In such circumstances I find the contention put forward by the applicant has to be accepted and accordingly, the order passed in Application No. 3070 of 1987 in C.S. No. 296 of 1987 is set aside. 16. In the result, the application is allowed and it is open to the applicant to work out his remedy before the City Civil Court, Madras in the proper proceedings for getting the amount. There will be no order as to costs.