Madras High Court
Murugappa Chettiar vs Palaniyappa Chetty on 17 July, 1917
Equivalent citations: (1917)42MLJ507
JUDGMENT Phillips, J.
1. Under Order XXI, Rule 89, the money paid into Court is (a) & sum for payment to the purchaser and (b) a sum for payment to the decree holder. It is contended for petitioner that the Subordinate Judge is wrong in holding that the latter sum is available for rateable distribution. The only question is whether the money paid into Court for payment to the decree-holder can be deemed to be "assets held by the Court" within the meaning of Section 73 of the Code of Civil Procedure. In Hari Saha v. Faizlar Rahman 18 Ind. Cas. 839: 40 C. 619: 17 C. W. N. 636: 18 C. L. J. 144, it has been held that it cannot and in Sorabji v. Kala Raghunath 12 Ind. Cas. 911: 36 B. 156: 13 Bom. L. R. 1193, it has been held that money paid under Order XXI, Rule 55, to set aside an attachment is not available for rateable distribution. The existence of a practice to the contrary in Madras alleged by the Subordinate Judge does not appear to be supported by any reported oases and the Subordinate Judge must apparently have relied on his personal knowledge of the practice. However in Kasthuri Aiyangar v. Arunachelarn Chettiar 34 Ind. Cas. 350: (1916) 1 M. W. N. 195 at 196, a Bench of this Court remarked that if a payment had been made under Section 310A of the' Civil Procedure Code of 1882 (corresponding to Order XXI, Rule 89, of the new Code) that money could not be rateably distributed. I entirely agree with this statement and the decisions in the Calcutta and Bombay cases. It appears to me that if the sum paid under Order XXI, Rule 89 (b), can be deemed to be assets held by the Court, the amount paid under Order XXI, Rule 89 (a), would equally be assets liable to rateable distribution. The amounts are, however, paid in for a specific purpose and are held by the Court solely for that purpose. The petition is accordingly allowed with costs throughout' and petitioner will be entitled to the whole amount paid in.