The Accountant General, Madras vs Singamuthu Konar and Another

Ramachandra Iyer, J.—This is a case taken up by this Court suo motu to revise the order of the Subordinate Judge in E. P. No. 28 of 1957

in S. C, S. No. 199 of 1947 on the file of the Sub Court, Pudukottai. The order sought to be revised is dated 28-2-1958 which made absolute the

attachment of a provident fund amount standing in the name of one V. Somasundaram. The facts relevant to the case are : One V. Somasundaram,

a process server of the Sub Court, Pudukottai, was a subscriber to the Pudukottai State Provident Fund.

The account showed a balance of Rs. 584-14-0. On 12-9-1935 the subscriber nominated his paternal uncle Swaminathan as the beneficiary in

respect of the fund. The nominee, however, predeceased the subscriber. On 14-2-1953, Somasundaram died a bachelor leaving no family of his

own. There were three claimants to the provident fund. On 26-2-1953 the Subordinate Judge directed the rival claimants to produce a succession

certificate and take the amount due under the fund.

No one of the claimants however produced a succession certificate, with the result that the provident fund amount was transferred to the lapsed

deposit account of the year 1956-57. The lapsed deposit account is merely an accounting expediency and does not change the character of the

fund or vest the property in the fund in the Government. As the nomination made by the subscriber had failed, the fund would be payable to the

legal representative of the deceased Somasundaram.

One Singamuthu Konar had obtained a decree against the deceased Soinasundaram in his lifetime in S. C. S. No. 199 of 1947. On 23-10-

1956 the decree-holder filed E. P. No. 28 of 1957 for attachment of the provident fund amount under Order 21, Rule 52 C. P. C., on the ground

that the property attached was in the custody of the court. It must be noticed that by the time the application was filed the provident fund amount

had been transferred to the lapsed deposit account .

In the execution petition one Kannusami Pillai was impleaded as the legal representative of the deceased. Kannusami Pillai, however, was ex parte

and on 28-2-1958, the attachment was made absolute immediately after the filing of the execution petition there was an interim prohibitory order

issued and notice of the same was served on the Subordinate Judge on 25-9-1957. In pursuance of that notice the Subordinate Judge applied to

the Accountant-General, Madras for transfer of the provident fund amount from the lapsed deposit account to the credit of the suit.

On 27-12-1957 the Accountant General, Madras wrote a letter objecting to the transfer and serving out all the circumstances under which the

amount came to be put in the lapsed deposit account and stating that the amount was not attachable. That letter however does not appear to have

been considered by the Subordinate Judge when he made the attachment absolute. Following the order making the attachment absolute, the

decree-holder applied in E. A. No. 128 of 1958 to send for the amount from the Accountant-General, Madras.

Orders were passed acceding to the request of the decree-holder and the Subordinate Judge sent letters to the Accountant General, Madras,

calling upon him to send the amount. On being apprised of the circumstances set out above, this court purporting to issue a notice under S. 115

C.P.C. called for the records in the aforesaid proceedings to examine the regularity and propriety of the proceedings. There can be no doubt that

the order of the Subordinate Judge making the attachment absolute cannot be supported.

The deposit with the Government was part of the effects of the deceased Somasundaram. u/s 214(1)(b) it is not competent for any court to

proceed upon the application of any person claiming to be entitled to execute, against the Government a decree or order of the payment of debt,

as in this case, by issuing a prohibitory, order under Order XXI Rule 52 C. P. C. When the Accountant-General had repudiated the liability to pay

the amount except on the production of a succession certificate it was the duty of the Subordinate Judge to have directed the decree-holder to

obtain the money after talking in appropriate steps.

As I said already, no succession certificate was ever produced by any person. Kannuswami did not produce a succession certificate, nor did the

creditor obtain any letters of administration entitling him to administer the estate of the deceased and incidentally pay the liabilities of the deceased.

Under the circumstances the order of the lower court dated 28-2-1958 in E. P. No. 28 of 1957 in S.C.S. No. 199 of 1947 cannot be supported.

It is hereby set aside.

Mr. K. S. Desikan, learned counsel for the decree-holder brings to my notice an objection to the form in which the proceedings were initiated

by this court. The notice issued to the respondent was purported to be u/s 115 C.P.C. The orders complained of were passed on the small cause

side of the court of Subordinate Judge. The appropriate provision to call for the records is Section 25 of the Provincial Small Cause Courts Act.

Under that provision this court has plenary powers to call for the records and would not even be bound by the restrictions imposed by Section 115

CP.C. As the respondent has not been prejudiced by the defect in the form of the notice, I convert this petition into one u/s 25 of the Provincial

Small Cause Courts Act and pass the order as stated already. There will be no order as to costs.