Madras High Court
Seeni Asan Usan Rowthen, Karuppan ... vs T. Sethu Ram Chetty And Ors. on 29 September, 1909
Equivalent citations: 5IND. CAS.145
JUDGMENT
1. In our opinion the plaintiffs were not entitled to rateable distribution, because at the date on which the assets were realized there was no application for execution presented by them, pending in the Court which conducted the execution.
2. The plaintiffs applied in April 1900 for attachment of the 1st defendants' right to Veceive a monthly allowance and for an injunction directing the disburser of the allowance to pay it into Court as it fell due. The Subordinate Judge did not attach the right, but in his order of the 23rd of April 1900 directed notice to be issued as regards the prayer for injunction. On the 4th of May he made an absolute order directing the disburser of the allowance, the Dewan Trustee of Ramnad, to pay the allowance into Court, and on the 18th of July payment not having been made, he struck off the execution application of the plaintiffs.
3. It is not denied that this last order closed the proceeding on the plaintiffs' application unless the order of the 4th May directing payment into Court can be taken as an order effecting an attachment under Section 268 of the Civil Procedure Code.
4. We think it is clear from his order of the 23rd April that the Subordinate Judge did not intend to act under Section 268 and that section does not contemplate an order for payment into Court nor the issue of an injunction. The order of, the 4th of May did not, therefore, effect an attachment under Section 268, Civil Procedure Code, and the application of the plaintiffs was finally disposed of on the 18th of July.
5. That being so, on the authority of Tiruchittambala Chetti v. Seshayyangar 4 M. 383 and other cases, we must hold that the plaintiffs had no right to rateable distribution under Section 295, Civil Procedure Code, and their suit should have been dismissed.
6. Reliance is also placed upon a former application for execution disposed of in March 1900 but we find that in their subsequent application, Exhibit C, the plaintiffs state that the former petition was disposed of on the ground that the allowance which it was proposed to attach had been paid and there was, therefore, nothing to be attached. The order striking off that application in these circumstances disposed of it finally.
7. We, therefore, set aside the decrees of the lower Courts and dismiss the suit with costs throughout against the appellants.