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Judgment
Umamaheswaram, J.—Two questions arise for decision in the Civil Revision Petition, (1) Whether the transfer of the decree in O. S. No. 48 of 1950, Sub Court, Rajahmundry, and A. S. No. 629 of 1951 of the High Court of Andhra obtained under Exhibits A-2 by the transferee from his father is a true and genuine one? and (2) Whether the respondent is not entitled to attach the said decrees under Order XXI Rule 53, C. P. C.? The court below rightly found in paragraph 9 of the order that stamps purchased by third parties were pressed into service for the purpose of obtaining the transfer.
The transfer purports to be for a sum of Rs. 5000/. due by the father to the son. The amount under the two decrees transferred does not amount to even Rs. 4000/-. I agree with the finding of the District Munsiff that the transfer was made with a view to defeat the attaching decree-holder''s rights.
There is also no force in the contention of Sri V. V. Krishnamurthy, the learned Advocate for the petitioner, that the decree in O. S. No. 48 of 1950, Sub Court, Rajahmundry and A. S. No. 629 of 1951 of the High Court of Andhra are not attachable under Order XXI, Rule 53, C. P. C. Order XXI, Rule 53 provides the manner in which a decree for payment of money should be attached. There can be no doubt whatsoever that the decree for costs passed in A. S. No. 629 of 1951 can be attached. The only other question that remains to be decided is whether the costs, which the judgment-debtor was entitled to recover in restitution, is liable to be attached.
u/s 2(2) C. P. C., a decree shall be deemed to include the determination of a question u/s 144, C. P. C. An order for restitution of costs is consequently a decree within the meaning of Section 2(2) of the Civil Procedure Code. What Order XXI, Rule 53 (1), C. P. C. provides is that where the property to be attached is a decree for payment of money, it shall be made in the manner provided therein. I am clear, on the language of the section, that the order for restitution of costs is a decree for payment of money.
Sri V. V. Krishnamurthy, the learned Advocate for the petitioner, invited my attention to a passage in Mulla''s Code of Civil Procedure, 12th Edition, at page 842, which runs in the following terms :
"A decree, whereby B was compelled to deliver up possession of certain lands to C, is reversed in appeal, and B is declared to be entitled to recover back possession from C with mesne profits. A obtains a decree against B, and applies in execution of his decree to attach B''s right to recover mesne profits from C. The right is not attachable, for it is not a decree." The learned commentator is wrong in overlooking the definition of "decree" and stating that the order for restitution is not attachable as it is not a decree.
Reference was next made to a passage in Vasudeva v. Narayana ILR 24 Mad 341 which is also set out at page 842 of Mulla''s Civil Procedure Code, 12th Edition. The learned Judges held in that case that "if a summary order awarding mesne profits had been made before the attachment under which the 1st respondent claimed, it may be that such an order would be a decree within the meaning of Section 273" (corresponding to Order XXI, Rule 53). The passage on which great stress was laid by Sri V. V. Krishna Murthy is in the following terms :
" ............ but before such an order is made it is difficult to hold that the right to restitution is property which is a decree within the meaning of Section 273."
I am unable to follow how the right to restitution is not property. If the order for restitution directs a particular sum to be paid by way of costs or otherwise, it is, in my opinion, attachable property. What is required under Order XXI, Rule 53, C. P. CJ is that the property to be attached should be a decree for payment of money.
I am satisfied that the terms of Order XXI, Rule 53, C. P. C. are complied with and that the order of the court below is quite correct.
In the result, the civil revision petition fails and is dismissed. There will be no order for costs as the respondent is unrepresented. As the respondent was unrepresented, I appointed Sri C. Poorniah as Amicus Curiae.