Parthasarathy Appa Row vs Rangiah Appa Row and Another

Charles Arnold White, C.J.—This is an appeal against an order of the District Court of Godavari directing the payment out of Court of one-

third of certain moneys standing to the credit of Original Suit No. 35 of 1895 in the Subordinate Judge''s Court of Masulipatam on security being

furnished. The material facts and dates with reference to the circumstances in which the application was made are as follows:

In 1895 the Medur Renee instituted Original Suit No. 34 of 1895 in the Masulipatam Court to recover possession of the Medur Estate. One

Papamma Row and the Court of Wards were made defendants to that suit. For the purposes of to-day it will be sufficient to say generally that

Papamma Row alleged that she had validly adopted Narayya Appa Row, the son of the Medur Ranee. The boy died during the life-time of the

Medur Ranee and of Papamma Row. The Medur Ranee claimed the Medur property on the ground of her rights as natural mother, whilst

Papamma Row claimed it on the ground of her rights as adoptive mother of the deceased boy. At the time of the institution of the suit the Court of

Wards were in possession of the estate on behalf of the boy. In that suit an application was made by the Court of Wards for the appointment of a

Receiver. The matter came before the High Court on appeal and on July 29th, 1898 an order for payment into Court was made by the High

Court. By that order Papamma Row (the 1st defendant) was appointed Receiver in place of the then Receiver and the latter was ordered to

deposit in the Bank of Madras at Cocanada all the jewels and securities in his possession and to pay into the Bank any balance of cash that might

remain after payment of all legal charges, the momey to be interested and to stand to the credit of Original Suit No. 35 of 1895. In pursuance of

this order the money, in round figures some ten lakhs of rupees, was paid into Court to the credit of Original Suit No. 35 of 1895 in the

Masulipatam Court, As a matter of fact, for purposes of convenience the money was deposited in the local branch of the Madras Bank. In March

1899 the Medur Ranee died and the two respondents to the appeal now before this Court were brought on the record as the 2nd and 3rd plaintiffs

in Original Suit No. 35 of 1895. This suit was heard and on December 2nd 1899 it was dismissed. The plaintiffs appealed to this Court and their

appeal is now pending. Two days after the dismissal of the suit, Papamma Row died and the present appellant, as the respresentative of Papamma

Row was made a respondent to the appeal by the plaintiffs in Original Suit No. 35 of 1895. His case is that he stands in the same degree of

relationship with the common ancestor as the 2nd and 3rd plaintiffs in Original Suit No. 35 of 1895 and that he is entitled to the estate jointly with

them. On December 14th, 1899 the present appellant instituted Original Suit No. 44 of 1899 in the District Court of Godavari against the two

plaintiffs in Original Suit No. 35 of 1895. In this suit he claimed partition of the Medur Estate and also of another estate know as the Nidadavole

Estate. Papamma Raw had derived her right to this estate through her husband. The present appellant''s case with regard to the Nidadavole Estate

also is that he stands in the same degree of relationship with the common ancestor as the two defendents to the suit (2nd and 3rd plaintiffs in

Original Suit No. 35 of 1895 and the present respondents) and that he is entitled to this estate jointly with them. The case of the 1st of the present

respondents as regards the Nidadavole Estate is that he is entitled to the whole of that estate by right of primogeniture.

On January 26th 1900 a Receiver was appointed in Original Suit No. 44 of 1899 for the Nidadavole and Medur Estates and for the moveables

appertaining to the Nidadavole Estate pending the disposal of that suit. The order appointing the Receiver did not purport in any way to deal with

the money deposited in the Bank of Madras to the credit of Original Suit No. 35 of 1895 in the Sub Court of Masulipatam.

On January 9th 1901 an application by the present 1st respondent of a similar character to that on which the order was made which is now

before this Court was dismissed and the order dismissing this application was affirmed by the High Court. The progress of the litigation has been

delayed by reason of the passing of the Impartible Estates Act but as things stand at present the appeal in Original Suit No. 35 of 1895 will shortly

be heard by this Court while there seems no reason to doubt that Original Suit No. 44 of 1899 will be disposed of by the District Court of

Godavan in the course of the next few weeks.

On August 8th 1902, the 1st defendant in Original Suit No. 44 of 1899 (the 1st respondent now before this Courts made the application with

which we are now concerned. The application was made to the District Court of Godavari in Original Suit No. 44 of 1899 and it asked that Court

to order payment to petitioner of one-third of the cash balance to the credit of the the Medur Estate and also to direct the Receiver to pay to the

petitioner one-third of the cash balance to the credit of the Medur and Nidadavole Estates, The District Judge declined to make any order on the

2nd prayer of the petition on the ground that there were practically no funds in the Receiver''s hands out of which payment could be made. But he

ordered the payment out of one-third of the money in Court subject to security being furnished. The 1st defendant in the suit in which the

application was made (Original Suit No. 44 of 1899) did not appeal against so much of the order of the District Judge as declined to order the

payment out of moneys in hands of the Receiver appointed in that suit. The moneys which the District Judge ordered to be paid out of Court were

moneys which had been paid into the Masulipatam Court to the credit of the Masulipatam suit under the order of the High Court, dated July 29th,

1898. I am of opinion that the District Judge had no jurisdiction to make this order. It is no doubt true that the plaintiff in Original Suit No. 44 of

1899 (the present appellant) is at the most, according to his own case only entitled to one-third of the properties in question, that it is part of his

case that the present 1st respondent is entitled to one-third of the properties and that the parties to the two suits are the same. But this state of

things does not give jurisdiction to the Godavari Court to deal with moneys which had been paid into another Court of co-ordinate jurisdiction, in

another suit under the orders of the High Court, The District Judge was of opinion that Section 502 of the, CPC applied since the money was held

on behalf of the parties to the two suits

The section runs as follows:

When the subject-matter of a suit is money or some other thing capable of delivery, and any party thereto admits that he holds such money or

other thing as a trustee for another party, or that it belongs or is due to another party, the Court may order the same to be deposited in Court or

delivered to such last named party with or without security, subject to the further direction of the Court.

On the true construction of the section it seems to me that it only applies when the party making the admission holds the property or other thing

which the party in whose favour the order is made seeks to have delivered to him. But even adopting the constriction for which Mr. Krishnaswami

Aiyar contended and assuming that the section was intended to apply to a case where the property is not held by the party making the admission,

the section, in my opinion, would not cover a case where the money was held by another Court to the credit of another suit. The District Judge in

paragraph 18 of his order directed that this one third share could be attached and Mr. Krishnaswami Aiyar, so far as I could follow his argument

upon the point sought to support the order on the ground that the one-third share could be regarded as ""attached"" within the provisions of Section

272 Civil Procedure Code. In the first place the order is not, and does not, purport to be an order of attachment. There could be no attachment in

Original Suit No. 44 of 1899 for the reason that there is, as yet no decree in the suit. In the second place the section merely provides a special

method of attachment in a case in which the Court ordering the attachment has jurisdiction to make the order. The words ''''subject to the further

orders of the Court from which the notice issues"" presuppose that it is competent for the Court to make the further orders referred to in the

section. In my opinion it was not competent for the Godavari Court to make any order with reference to the moneys in the Sub-Court of

Masulipatam standing to the credit of the Masulipatam suit. Where property is the subject of legal proceedings there is no doubt jurisdiction in

certain circumstances to allow the payment of the income of the property to parties interested. In England this jurisdiction is recognized in R.S.C.

Order 50 Rule 9, which reproduces the provisions of the old Chancery Procedure Act. I feel no doubt that at any rate a High Court in this country

has jurisdiction to make an order pendente lite for the payment of moneys in the hands of Receiver to one of parties to a suit. For a case in which

this jurisdiction was exercised, see Motivahu v. Premivahu ILR 16 B. 511. In the present case if a proper application were made in the proper

Court an effective order as to the disposition of the fund in Court could be made. I am of opinion that there was no jurisdiction in the Godavari

Court to make the order complained of, and 1 think it should be set aside.

Boddam, J.

I agree.

Subrahmania Aiyar, J.

The facts of the case which are all undisputed, having been fully set out in the judgment the learned Chief Justice, I shall, without repeating them,

proceed at once to consider the questions which in my opinion arise for determination. They are:

Whether the District Court had power to direct payment to the 1st respondent of the amount referred to in its order, notwithstanding that the

money was not in the hands of either of the other parties to the litigation, the appellant or the 2nd respondent.

Whether, assuming the District Court had such power, it was precluded from directing the payment by the mere fact that the fund out of which

the payment was to be made, was in the custody of another Court of co-ordinate jurisdiction (viz: of the Sub-Court of Masulipatam), without any

reference whatever to the circumstances of the litigation in connection with which the money came into the custody of that Court and to the rights

possessed by the parties in the fund.

And lastly whether, if the order of the District Judge is not open to question on either of the above grounds, it was rightly passed on the merits.

Now the first question depends on the construction of Section 502 of the CPC which runs thus: ""When the subject matter of a suit is money or

some other thing capable of delivery, and any party thereto admits that he holds such money or other thing as a trustee for another party, or that it

belongs or is due to another party, the Court may order the same to be deposited in Court or delivered to such last named party, with or without

security, subject to the further direction of the Court.

I can see no warrant at all either in the language or the reason of this provision, to confine its operation only to cases where the money or the

thing capable of delivery is actually held by a party to the suit. If the intention of the legislature was so to confine it, it was of course the easiest thing

to have made that intention clear. For instance that could have been done by inserting after the words ''capable of delivery'' the short clause ""and is

held by a party to the suit"" and Subsisting for- the words ""any party thereto"" immediately following, the word ""such party."" To adopt the

construction suggested on behalf of the appellant is to import into the section the material words suggested above or something to that effect. It

cannot be said that the introduction of such material words is necessary to avoid any absurdity or incongruity or the like, which would result from

the adoption of the strictly grammatical construction of the section. No liberty being taken with the language of the section, it follows that the order

contemplated by the section can be passed whether the money or other thing is in the hands of a party to the litigation or not, so long of course as

such order is enforceable without infringing the rights of a person not a partly to the suit.

There is nothing in the reason of the provision which should make us hesitate to accept this conclusion as the right one. In fact all considerations

on that score will, [think, be found to point in its favour, As might have been expected, the learned pleaders for the appellant did not shrink from

urging that under the law of this country a Court has no power prior to decree to make any such order as is contemplated by Section 502, Civil

Procedure Code, in respect of property in its own hands, even though the conditions as to the property being the subject-matter of the suit and the

admissions as to the title thereto were present. As to whether such an order could be passed in virtue of any inherent authority in the Court, it may

be observed that no power of the kind is claimed in respect of property in the hands of a party. It has to be borne in mind that there is an essential

distinction between a Court''s inherent power and its jurisdiction, I am not aware of any authority which supports the view that the inherent power

of a Court could be invoked except for the limited purpose of preserving and enforcing order, securing efficiency and preventing abuse of process

in the exercise of a jurisdiction which the Court otherwise possesses. This being so, unless Section 502, Civil Procedure Code, is held applicable

to such a case, it would follow that the legislature, while taking the trouble to enable a Court to pass orders as to property in the hands of a party,

in the circumstances contemplated by the section, has left unprovided the case of property otherwise similarly, circumstanced, because of the more

advantageous fact that it is in its own hands. I, therefore, unhesitatingly come to the conclusion that the restricted construction sough to be put upon

the section is untenable and that the District Court had power to direct the payment; notwithstanding that the money was not held by any of the

parties to the suit, provided that the order was otherwise sustainable.

Passing to the next question, it is to be observed that the contention as to this on behalf of the appellant rests on the extraordinary assumption

that once property in litigation passes into the custody of a Court, such custody becomes somehow completely disconnected with the matters in

litigation and the rights of the parties concerned--that it has a magic about it which would preclude any other tribunal having jurisdiction over other

litigation in respect of the same property and entitled by its adjudication to bind the parties litigating in the Court having custody, from passing any

order affecting the property even though the execution of, or the giving effect to, such order in no way conflicts with any decrees or orders passed

or to be passed by the Court having the custody. The very statement of this assumption is to my mind sufficient to expose its fallacious character.

No cases were cited in the argument throwing light on the point and apparently the question is new to this country. So far as I am aware there is

little English authority bearing on the point and this is possibly because the conditions of judicature in England have scarcely admitted of any such

question of conflict arising. If, however, we turn to the United States, such questions, owing to the existence side by side of Federal and State

Courts, have arisen not infrequently and a number of cases are to be found in the reports of the tribunals of that country, dealing, with sufficient

fulness and clearness, with the main principles applicable to the matter and the working thereof in actual practice. It is, however, enough for the

present purpose to refer to a few of them.

Buck v. Colbath Wallace, p. 334 decided by the Supreme Court of the United States in 1865. seems to be a leading authority. There the facts

were these. Buck, a Marshal of the United States, having in his hands a writ of attachment against certain parties,"" levied the same upon certain

goods. Colbath who was not among these parties brought an action of trespass in a State Court against Buck for taking the goods. At the trial,

Colbath proved his ownership and Buck relied solely on the fact that he was Marshal and held the goods under the writ. The defence of the

Marshal was held unsustainable.

Though so far as the facts go, the present case is different, yet as the law relating to the matter under consideration is elaborately expounded in

the judgment, and as some dicta in an earlier decision of the same tribunal connected with the matter and likely to give rise to misapprehension are

explained, it may be well, notwithstanding their length, to extract the following passages:

It must be confessed that this decision Freeman v. Howe 24 Howard, 450 took the profession generally by surprise overruling as it did the

unanimous opinion of the Supreme Court of Massachussets as well as the opinion of Chancellor Kent in his Commentaries (Vol. 1., 410). We are

however entirely satisfied with it and with the principle upon which it is founded, a principle which is essential to the dignity and just authority of

every Court and to the comity which should regulate the relations between all Courts of concurrent jurisdiction. That principle is that whenever

property has been seized by an officer of the Court by virtue of its process, the property is to be considered as in the custody of the Court and

under its control for the time being, and that no other Court has a right to interfere with that possession unless it be some Court which may have a

direct supervisory control over the Court whose process has first taken possession, or some superior jurisdiction in the premises.*** A departure

from this rule would lead to the utmost confusion and to endless strife between Courts of concurrent jurisdiction,* * * *

This principle, however, has its limitations ; or rather its just definition is to be attended. It is only while the property is in the possession of the

Court either actually or constructively that the Court is bound or professes to, protect that possession from the process of other Courts. Whenever

the litigation is ended or the possession of the officer or Court is discharged, other Courts are at liberty to deal with it according to the rights of the

parties before them whether these rights require them to take possession of the property or not. The effect to be given in such cases to

adjudications of the Court first possessed of the property depends upon principles familiar to the law; but no contest arises about the mere

possession and no conflict but such as may be decided without unseemly and discreditable collisions. * * * It is obvious that the action of trespass

against the Marshal in the case before us does not interfere with the principle thus laid down and limited. The Federal Court could proceed to

render its judgment in the attachment suit, could sell and deliver the property attached and have its execution satisfied without any disturbance of its

proceedings or any contempt of its process. While at the same time, the State Court could proceed to determine the questions before it involved in

the suit against the Marshal without interfering with the possession of the property in dispute.* * * *

Seizing upon some remarks in the opinion of the Court in the case of Freeman v. Howe 24 Howard. 450 not necessary to the decision of that

case, to the effect that the Court first obtaining jurisdiction of a cause has a right to decide every issue arising in the progress of the cause and that

the Federal Court could not permit the State Court to withdraw from the former the decision of such issues, the counsel for the plaintiff in error

insists that the present case comes within the principle of those remarks.

It is scarcely necessary to observe that the rule announced is one which has often been held by this and other Courts, and which is essential to the

correct administration of justice in all countries where there is more than one Court having jurisdiction of the same matter. At the same time it is to

be remarked that it is confined in its operation to the parties before the Court or who may, if they wish to do so, come before the Court and have a

hearing on the issue so to be decided. * * * But it is not true that a Court having obtained jurisdiction of a subject-matter of a suit and of parties

before it thereby excludes all other Courts from the right to adjudicate upon other matters having a very close connection with those before the first

Court, and in some instances requiring the decision of the same questions exactly.

In examining into the exclusive character of the jurisdiction of such Courts, we must have regard to the nature, remedies, the character of the relief

sought and the identity of the parties in the different suits. For example, a party having notes secured by a mortgage on real estate, may, unless

restrained by statute, sue in a Court of Chancery to foreclose his mortgage, and in a Court of law to recover a judgment on the notes and in

another Court of law in an action of ejectment to get possession of the land. Here in all the suits the only question at issue may be the existence of

the debt mentioned in the notes and mortgage; but as the relief sought is different and the mode of proceeding is different, the jurisdiction of neither

Court is affected by the proceeding in the other. And this is true notwithstanding the common object of all suits may be the collection of the debt.

The true effect of the rule in these cases is, that the Court of Chancery cannot render a judgment for the debt, nor judgment of ejectment but can

only proceed in the own mode, to foreclose the equity of redemption by sale or otherwise. The first Court of law cannot foreclose or give

judgment of ejectment; but can render a judgment for the payment of the debt ; and the third Court can give the relief by ejectment but neither of

the others. And the judgment of each Court in the matter properly before it is binding and conclusive on all other Courts. This is the illustration of

the rule when the parties are the same in all three of the Courts.

The limitation of the rule must be much stronger and must be applicable under many more varying circumstances when persons not parties to the

first proceeding are prosecuting their own separate interests in other Courts.

The case before us is an apt illustration of these remarks. The proceeding in the attachment suit did not involve the title of Colbath to the property

attached. The whole proceeding in that Court ending as it might in a judgment for the plaintiff, an execution and sale of the property attached and

satisfaction thereby of the plaintiff''s debt, may be and in such cases usually is carried through without once requiring the Court to consider the

question of title to the property. That is all the time a question between the officer or the purchaser at his sale, on the one side, and the adverse

claimant on the other. There is no pretence, nor does any one understand that anything more is involved or concluded by such proceedings, than

such title to the property as the defendant in attachment had, when the levy was made.

Hence it is obvious that plaintiff in error is mistaken when he asserts that the suit in the Federal Court drew to it the, question of title to the property

and that the suit in the State Court against the Marshal could not withdraw that issue from the former.

Reference may next be made to the decision of the Supreme Court of Illinois in Plum and Atwood Manufacturing Co. v. Caldwell 29 ASR136

which strikingly brings out the necessarily intimate connection which exists between the custody of property by a Court and the rights of the parties

concerned, and further shows that their acts pending such custody may enable another Court to pass decisions touching the property, in short,

transfers jurisdiction over the property to that Court. The facts briefly were:

A corporation in Chicago had become insolvent. Writs of attachment had been issued at the instance of certain creditors of the corporation by a

Circuit Court of the United States and property seized by the Sheriff thereunder. A voluntary assignment in favour of the creditors was then made

and an assignee appointed. When the assignee sought to reduce the assigned property to possession he found it in the hands of the Sheriff who

claimed the right to hold the same subject only to the order of the Court which issued the writs. However, the creditors at whose instance the writs

had been issued and the seizure made gave their consent to an order by the County Court upon the Sheriff to pass possession to the assignee

subject to the lien, if any, in their favour arising by reason of the seizure. It was held that the property passed from the jurisdiction of the Circuit

Court which made the seizure and had the custody to the country Court which had jurisdiction over the assignment for the benefit of creditors, on

the simple principle that the jurisdiction of the former Court was one that could be waived by the party. The contention raised and the reasons for

its being overruled were thus stated:

Appellants deny the jurisdiction of the County Court to pass judgment upon the validity of the liens created by the levy of their attachments. They

insist that the Circuit Court alone had jurisdiction over the attached property and could alone ascertain and declare their rights in respect of the

same, This point may be conceded if the parties in interest had not by consent invested the assignee with the possession of the attached property

and thus clothed the County Court with exclusive jurisdiction in respect thereof and in respect of all claims thereon. The only defect in the

jurisdiction of the County Court was the want of possession by the assignee and when that defect was supplied by the voluntary consent of

appellants that the property should pass to the assignee, subject to their claims, the County Court was clothed with full authority to settle all

conflicting claims, including questions of priority that might arise in respect of such property. It was entirely competent for the parties to consent, as

they did, to the order of the County Court directing the Sheriff to turn over possess on of the property to the assignee. The rule giving exclusive

jurisdiction to the Court first acquiring it is one that parties may waive ; and by consent the jurisdiction of the Circuit Court was here waived and

the property passed into the hands of the assignee to be disposed of under the direction of the County Court, to all intents and purposes as if the

assignee had acquired possession prior to the levy, but subject to the lien created by such writs. It is true that the consent of the appellants for the

transfer of possession from the Sheriff to the assignee who is trustee for all the creditors as well as for the debtor corporation, was upon the

condition that such transfer should be subject to all priorities, liens and rights that might have been acquired by the levy of such attachment. The

right of all parties to the attached property was to remain in state quo. If appellants by their attachments had acquired valid liens, such liens were to

remain unaffected by the order on the Sheriff to surrender possession to the assignee. This determined no right in the creditors, but left such rights

for future adjudication by the Court having jurisdiction of the insolvent''s property. If the bank appellant had a prior lien by the levy of its execution,

it was to continue a lien until the debt was paid. If, on the other hand, execution was obtained by fraud, or was preferential, then it would be set

aside. And the same is true in respect of the attachments. These and all other questions by the voluntary surrender of the property to the assignee,

were submitted to the judgment of the County Court.

The case of Spiller v. Wells 70 American State Report, p. 878 , 96 Virginia, 588 decided in 1899 by the Supreme Court of Virginia may be

next noticed. The following passage at p. 880 of the American State Reports in the judgment is all that is material here:

The rule established is necessary to the orderly and decent administration of justice. Nothing can be more unseemly than a struggle for jurisdiction

between Courts ;but a rule which rests for its support upon considerations of convenience however great, and of decency, order and priority

however exacting must yield to the higher principle which accords to every citizen his right to have a hearing before some Court.

This extract shows that the jurisdiction arising from custody of property by a Court cannot bar the trial of a question relating to the property in

another Court if such trial cannot be had in the Court having the custody.

The case of Gay & Company v. Brierfield Coal and Iron Company 33 ASR 94 decided by the Supreme Court of Alabama in 1891, though

not a case of property in the custody of a Court, furnishes a clear illustration of the statement just made, for there it was held that though the trustee

of a mortgage bond of an insolvent corporation had procured in a Circuit Court of the United States a decree for foreclosure and sale of property,

the simple contract creditors of the corporation were at liberty to maintain a bill in a State Court to have the issue of the mortgage bonds and the

decree for foreclosure in the Circuit Court declared fraudulent and void as to them. It was laid down that the right to maintain the bill rested not

merely on the ground that the subject-matter of the second suit was not the same as that of the first, but also on the ground that the simple contract

creditors suing in the State Court were without adequate means of asserting their claims in the foreclosure suit in the Circuit Court, since they were

unable to make themselves parties there to without the consent of the complainant therein, and did not occupy that relation to the matter or the

parties in the suit which would enable them to file a bill of review of the decree and show error apparent on the record. The ground for the decision

was thus put by the Court (see p. 136 of the American State Reports):

All authorities recognize the importance of carefully preserving the boundary line between Courts of concurrent jurisdiction in order to prevent

conflicts and to preserve in harmony their relations to each other.* * * To prevent abuse of the principle, and the successful perpetration of

injustice or fraud through the forms of law, Courts accord to suitors and litigants all necessary latitude ; and they are not restricted to any one forum

or the adjudication of any question or right, provided only that such adjudications are not upon questions pending in another Court which had prior

jurisdiction and provided that its writs or process shall not hinder the performance of any lawful mandate of such concurrent Court or interfere with

or disturb the possession of any subject-matter then in gremio legis.

From the above authorities and others which I refrain from quoting lest this judgment might be unduly encumbered, for instance, cases of

seizure by a State Court of property subsequently litigated in Federal Courts on the ground of Maritime liens thereon, over which class of litigation

Federal Courts alone have jurisdiction, as to which Moran v. Stunges, 154 United States Reports, p. 256 and the cases cited therein may be

consulted, the following propositions would be seen to be clearly deducible:

(I). That the custody by a Court of property belonging to litigants does not give the Court any arbitrary power over it,

(II). that though such custody could not be interfered with directly by the orders of another Court, yet this is but a rule of comity intended solely to

avoid unseemly collisions in the execution of process of different authorities.

(III), that the rule in question is not a rigid and inflexible one but is capable of adaptation to circumstances and could never be worked so as to

defeat or obstruct the doing of justice in due course and consequently in no way interferes with the power of a Court other than that having custody

to pass orders touching the property where it has jurisdiction to pass the orders and bind the parties in connection with whose litigation the custody

of the other Court began, and

(IV). that it is therefore incumbent on the Court having the custody, on due application being made to it, to give effect to such an order in so far as

it is not inconsistent with the performance of its own duties respecting the property in the litigation before itself.

It is obvious that there is nothing in the rules thus'' deduced, that is peculiar to any particular country and that they rest on a policy necessarily

applicable to every system of judicature presenting similar conditions. Indeed Section 272 of the CPC on which Mr. Krishnaswami Aiyar relied,

not--as 1 understood him--as directly governing the present case, but only as supporting his argument by analogy, contains a distinct recognition of

the principles referred to in so far as execution of decrees passed by one Court, by attachment of property in the custody of another Court, is

concerned.

I ought perhaps to add that no argument against the soundness of the conclusions come to by me can be derived from the absence of an

express provision in the Code pointing out how effect is to be given to an order passed u/s 502. Civil Procedure Code, in respect of property in

the custody of another Court. But likewise the Code contains no direction as to how a decree by one Court in respect of property in the custody

of another Court, is to be carried out. Of course on the transmission of the decree to the Court having the property, that Court u/s 228 of the CPC

should direct the property to be dealt with according to the decree. And this would be so, not because of any express direction in the Code in

respect of the specific case but because that would necessarily be the course to be adopted had the property been in the custody of the very Court

which passed the decree It follows, therefore, that in a case like the present it would be the duty of the Court having the property to direct payment

in accordance with order so far as such payment would in no way derogate from anything to be done by itself, on due application being made to it.

Whether the application is to take the shape of a requisition by the Court itself or that of a petition by the party interested, is a mere matter of form

which in no way affects the competency of the Court to pass the order or the validity thereof otherwise. The general principles applicable to the

subject being apprehended to be as stated above, I shall proceed to consider the case with reference to the circumstances of the respective

litigations in the two Courts.

First as to the litigation in Masulipatam, the original plaintiff, the Medur Ranee, claimed that she was entitled to the money among other

properties as her deceasad son''s heir. This was denied by the defendant Papamma Row who herself claimed the property as adoptive mother and

heir of the deceased. The suit was dismissed. Appeals have been preferred to this Court in which the present appellant is contesting the

respondents'' claim in the right relied on by Pamma Row. The appeals have not been decided by this Court and there is no decree touching the

property in question to be executed. In this state of matters Papamma Row''s successors, no doubt, may, subject, to any order of the Appellate

Court in the matter, ask the Musulipatam Court to direct payment of the money in its custody to themselves. But such an application is, in the

circumstances, impossible for the two others entitled on the appellant''s showing as Papamma Row''s successors are the respondents themselves,

who deny his right to participate in the fund and base their case on a footing inconsistent with Papamma Row''s alleged right itself, viz., that of the

Medur Ranee''s alleged right. Now looking from the point of view of those claiming under the Medur Ranee, it is clear they could not obtain any

relief, interlocutory or otherwise, unless they succeeded in the appeals; and supposing they do, no order to be passed in pursance of the appellate

decree in such event, can really conflict with the present order directing payment of a third of the money in the custody of the Court to the first

respondent, since the party entitled to the benefit of both the orders is one and the same person, viz., the first respondent himself, who would then

be entitled to even more than a third, viz., a half.

Obviously therefore in no view of the possible termination of the Masulipatam litigation can it be said that the order of the Godavari Court

would in any way trench upon any orders to be passed by the Masulipatam Court in respect of the money.

Turning to the Godavari litigation it should be remarked that the appellant''s claim to a share in the moneys is only as one of the successors of

Papamma Row. That no question between him and the respondents on the footing on which this suit of the appellant rests, could have been or

could be litigated in the Masulipatam Court is patent; for there the Court was called upon simply to decide whether the Medur Ranee''s claim or

Papamma Row''s claim was well founded. If the former be upheld by the ultimate decree in that case, that would exclude the appellant from any

participation in the money, on the very hypothesis on which his case in both the Courts rests. If, on the other hand, Papamma Row''s claim be

upheld that would result in the confirmation of the decree dismissing the suit and the Court could not go into any dispute arising between those

entitled to take as Papamma Row''s successors inter se. Hence the inclusion by the appellant himself of the fund in the custody of the Masulipatam

Court, among the properties in litigation in the Godavari Court and the claim for the division thereof. The appellant having thus made the fund a

subject of the suit and having had all along to admit the 1st respondent''s right therein to the extent of a third at least, it is impossible to see how it

can lie in his mouth to question by any reference to the Masulipatam litigation the power of the Godavari Court to pass orders respecting it.

This being so, the order of the District Judge taking Section 502, Civil Procedure Code, to be applicable to the case, cannot but bind the

appellant and the other parties to the litigation and preclude any of them from contending to the contrary before the Masulipatam Court in any

proceeding coming before it between these parties, and the Masulipatam Court must give effect to it since, as already shown, no real conflict can in

consequence arise between the process of the two Courts in the matter.

Lastly, as to the merits, they are all in favour of the 1st respondent. It was said on behalf of the appellant that the appeals to this Court in the

Masulipatam suit as well as the original suit in the Godavari Court are likely to be disposed of ere long. But the disposal of those matters cannot

bring the object proposed to be effectuated by this order within measurable distance of its being otherwise accomplished. It is impossible to say

what the result will be in the appeals to this Court or in the suit in the Godavari Court and when, if at all, a final decree in favour of the 1st

respondent will be passed, seeing that the class of litigants before us, disputing about valuable Zemindaris, almost think that it is beneath their

dignity to be content with any but a decision of His Majesty in Council, Moreover the passing of the Impartible Estates Act which tied the hands of

the parties for more than a year is an incident sufficient to show the peculiar vicissitudes to which litigation in this country is subject. Though it is

some years since the litigation between the parties began, the 1st respondent admitted on all hands to be entitled to a third, has been unable to get

a single rupee yet, out of the large accumulated fund in the Masulipatam Court or out of that in the Godavari Court, and he is similarly kept out of

the enjoyment of even his admitted share of the income accruing from time to, time, out of the Zemindaris, the annual net rent of which alone is over

two lakhs of rupees. It is not surprising therefore that he has been unable to mete the demands of his creditors and is threatened with litigation and

loss. The appellant, on the other hand, has failed to show by anything tangible that his interest would suffer by the 1st respondent''s application

being granted. It seems therefore to me that the District Court exercised a very proper discretion in making the present order which it safeguarded

by the reservation of funds required to meet all contingencies and by requiring security.

It remains only to add that the mention of attachment in the Judge''s orders should be taken to have reference to what is to be done on the

receipt of the money. I understand the District Court to say that in order to give effect to its intensions it would treat the money when received as in

its hands for the satisfaction of the 1st respondent''s creditors and would make payment accordingly from time to time.

I would therefore dismiss the appeal with costs.

Arnold White, C.J.

In accordance with the decision of the majority of the Court, the order of the District Judge will be set aside.

The 1st respondent must pay the costs of the appellant and of the 2nd respondent here and in the Court below.