Patna High Court
Abdul Gafoor Butcher vs Mohammad Rasul Nizamuddin on 23 December, 1949
Equivalent citations: AIR1950PAT282, AIR 1950 PATNA 282
JUDGMENT Reuben, J.
1. This is an appeal by a judgment-debtor against an order of the District Judge of Manbhum Singhbhum confirming an order of the Subordinate Judge, Dhanbad, dismissing an application under Section 47, Civil P. C. It arises in the following circumstances :
2. The decree under execution was passed on 13th November 1946, on a compromise in a money suit. The decretal dues were settled at Rs. 2,443, and the decree-holder agreed to realise this sum out of a deposit standing at the credit of the judgment-debtors in the Hazradi Bank Dhanbad, and attached by the Court under Order 38, Rule 6, Civil P. C. The decree was signed on I8th November 1916, and the decree-holder applied for execution on 2lst November 1946. By the time the letter from the Court reached the bank directing payment out of the attached deposit the Bank bad closed its doors, and no reply was received from the bank. The objection under Section 47 that the decree-holder cannot proceed against any property of the judgment-debtors except the deposit in question has been rejected by the Courts below. Hence, this appeal.
3. Learned counsel for the appellant argues that the question is, which of two innocent parties should suffer. His client, he says, did all he could to make the bank deposit available to the decree-holder; all that was necessary was a letter from the Court to the Bank to sanction payment to the decree, holder and his client is not to blame if the letter did not issue in time. If anything, it was the decree-holder who was to blame, for the judgment-debtor has succeeded in getting from the bank the balance of the deposit after leaving a sufficient amount to meet the decretal dues. He urges that under the compromise it is not open to the decree-holder to proceed against any other property of the judgment-debtors.
4. Before considering the first point it is necessary to decide if it is open to the decree-holder to proceed against other property of the judgment-debtors.
5. The compromise in the following terms:
"1. That the plaintiff will get a decree for the sum of Rs. 2443 inclusive of costs.
2. That out of the amount attached and credited in the name of the defendants the plaintiff will beat liberty to withdraw the said sum of Rs. 2443. (Two thousand four hundred and forty three rupees,) and the defendants will get the balance. Manager Hazradi Bank may be directed to pay Rs. 2443 to the plaintiff and the rest may bo paid to the defendants.
8. The intimation may accordingly be sent to the manager Hazradi Bank (Dhanbad Branch). .. . "
and the decree is exactly in accordance with these terms.
6. This entitled the decree-holder to take payment from the said deposit, but there is nothing to restrict him to this remedy. The correct view to be taken in these circumstances is very forcibly put by Beaumont C.J., in the following words with which I respectfully agree :
"In arranging consent decree of the nature in question it is usually the creditor, and not the debtor, who is master of the situation, and I can see no justification for holding that by taking a charge upon specific property, the primary object of which, as I have pointed out, is to secure him against other creditors, the creditor abandons his right to proceed against other property of the debtor. Such an abandonment should not be presumed in the absence of language making clear the intention to abandon."
(Gurappa Gurushidappa v. Amarangji Vanichand, A. I. R. (28) 1941 Bom. 90 at p. 92 : I. L. B. (1941) Bom. 299 F.B ).
I think the Courts below have correctly decided this point.
7. Coming to the other point, it seems to me that the rule that governs the case is what Blackburn J., called the "old civil law maxim ras perit domino--Martineau v. Kitching, (1872) 7 Q. B. 436 : (41 L. J. Q. B. 227), vide also The Parchim, (1918) A. C. 157 at p. 168 : (87 L. J. P. 18), subject to an equity in favour of the owner if the loss is caused by the default of the other party (Sweeting v. Turner, (1871) 7 Q. B. 310 : 41 L. J. Q. B. 68). This principle is embodied in 8. 84, Negotiable Instruments Act, 1881 and Section 26, Sale of Goods Act, 1930 : Vide also Ramzan & Co. v. Shariff Mohammad, A. I. R. (11) 1924 Bom. 520 : (76 I. 0. 578).
8. The question, therefore, is "In whom is the ownership of the deposit vested?" There can be no doubt on this point. Under the decree the decree-holder merely got the right to payment of Rs. 2,443 out of the deposit, and was not entitled to withdraw the sum till the necessary authority had issued from the Court to the bank, and the bank closed its doors before the Court's letter reached it. Even when a cheque is issued by a debtor in favour of the creditor, and the creditor in thereby empowered to go to the bank and demand payment forthwith the deposit remains the property of the debtor. Still more would it remain the deposit of the judgment-debtors in this case. Here, there was at most a charge on the deposit created by the decree, and even a charge does not amount to a transfer of interest Mt. Indrani v. Maharaj Narain, A. I. R. (24) 1937 Oudh 217 : (13 Luck. 101 P.B.).
9. So the ownership of the deposit remained in the judgment-debtors and the loss must be borne by them unless there is some equity in their favour. The onus of proving that there was such an equity was on them. In this case, no attempt has been made to discharge that onus. In fact, no equity was pleaded in the application under Section 47, the only plea being that under the terms of the compromise the decree-holder's sole remedy was against the deposit. It was only at the stage of the appeal in the District Court that it was pleaded that the appellant was prevented by the compromise from withdrawing the decretal amount and has withdrawn the balance of the deposit. No evidence is tendered in support of the alleged withdrawal, and a perusal of the order sheet of the execution case throws doubt on this plea.
10. I have mentioned that the execution case was filed on 21st November 1946. The decree, holder prayed that a letter be sent to the manager of the bank requesting him to remit the money, and asked that if the money did not come, the decretal dues be realised by attachment and sale of other property of the judgment-debtors. No list of such other properties was filed and no question of attaching such other property arose then or could arise till after the attempt to get the deposited money had failed. For some reason the Subordinate Judge delayed in issuing the letter. He asked for a copy of the order by which the deposit had been attached, an order passed by himself and presumably readily available to him, as it is unlikely that the record of the suit had left his office for deposit in the record room. Matters were thus delayed till 17th December 1946, when the judgment-debtor appeared and asked for time to file an objection. It is difficult to see why he should want to object. As I have said the question of attaching any other property would only arise after the attempt to get the deposit money had failed, and the judgment-debtor should have been anxious that the letter should issue as soon as possible to the bank. The objection was filed on 3rd January 1947, and the necessity for issuing the letter was lost sight of till the objection was dismissed on 16th April 1947. Then at last the matter was thought of, and it was directed that the letter be sent. Once more the decree-holder was asked to supply information for the purpose. There is a note dated "7.6" in the margin stating that a letter had been issued but, apparently, this is a false entry for the next order dated 19th May 1947, is to the effect that no letter has been sent. A fresh direction was then made and the letter was issued, apparently without the information asked for being supplied by the decree, holder. One wonders why the information was asked for and so much precious time wasted when, in the end, it was possible to do without the information. On 3rd June 1947, the letter came back undelivered as the bank had closed its doors. During all this time, the record shows that no letter was issued to the bank, and I have not been able to find any trace of any communication reaching the bank in the rest of the order sheet which extends up to 27th February 1948. If this is so, how is it that the judgment-debtors have got the balance of the amount due to them ? The deposit had been attached by the Court, and it is unlikely that any payment would be made out of it without orders from the Court. To come back to the point I am considering, viz., whether there is any equity against the decree-holder in favour of the judgment-debtora, can it be said that he was responsible for the delay in issuing the letter ? Even if some blame attaches to him for not supplying information which was subsequently found to be unnecessary, can the loss be attributed to the delay ? We do not know when the bank closed its doors. It may have done so before the decree was passed, in which case no amount of delay on the part of the decree-holder could have made a difference.
11. In view of the above circumstances, I think the loss must be borne by the judgment-debtors.
12. This appeal has no merit and must be dismissed with costs.
Sinha, J.
13. I agree.