Judgement

Appeal (No. 49 of 1939) from orders of the High Court (October 2, 1934, and February 1, 1935) which affirmed orders of the Subordinate Judge of Ramnad (December 23, 1931).

R. obtained a decree against S. for Rs.46, 253 in the Court of the Subordinate Judge of Ramnad and

S. obtained a decree against R. for Rs.33, 068 in another suit in the same court.

R. applied for execution of his decree against S. by attachment of the decree S. had obtained against him by setting off the amount realized against S.s decree and executing the decree in respect of the balance.

Both R. and S. died and proceedings were continued by and against their respective sons as their representatives.

Third parties (now respondents Nos. 2 to 10) had obtained aecrees against S. and one of them, who had obtained a decree against S. in another court, had attached the decree in question under Order XXI., r. 53, sub-r.1 (b), of the Code of Civil Procedure. They and S.s son (now the first respondent) opposed the application.

The Subordinate Judge dismissed the application on the ground that the decree could not be set off without the concurrence of all the attaching creditors.

On appeal, the High Court (Madhavan Nair and Pandrang Row JJ.) agreed with the Subordinate Judge in holding that the application without the concurrence of all the attaching creditors was incompetent and held that the decree was also incapable of execution because the attachment under Order XXI., r. 53, sub-r. 1 (b), was still in force and the creditor who had attached the decree under that Order had not applied for execution.

The facts and grounds of decision of the lower courts are more fully stated in the judgment of the Board.

The Court of Wards was added as a formal party to the appeal as the second respondent was a ward under it.

1940. April 29. L. P. E. Pugh K. C. and P. V. Subba Row for the appellant The decree could undoubtedly have been executed by set off if there had been no other attachments. The existence of other attachments would not deprive me of my right to apply for execution. No assets had come into Court and no question of rateable distribution under s. 73 of the Code could arise. Attachment does not give a charge on the property; Raghunath Das v. Sunday Das Khetri.(( 1914) L. R. 41 I. A. 251.)

[Reference was also made to the notes under s. 64 in Mullas Code of Civil Procedure and to Kaim Ali Joardar v. Luckhy Kant Chuckerbutty (( 1868) 10 W. R. (F. B.) 32.), Awaita Chandra Saha v. The Chittagong Co., Ld., and Others (A. I. R. 1925 Cal. 102.), Rajman Ram v. Sayri Prasad (A. I. R. 1937 All. 422) and Ponmisamy Nadar v. Doraisamy Ayyar.(( 1909) I. L. R. 32 Mad. 336.)]

R. Ritson for the eleventh respondent, the Court of Wards We lodged no case, but as the appellant would not give an undertaking not to ask for costs against us, we are here and ask for our costs.

The other respondents were not represented.

May 30. The judgment of their Lordships was delivered by LORD ROMER. This is a consolidated appeal against the orders dated October 2, 1934, and February 1, 1935, of the High Court of Madras affirming two orders dated December 23, 1931, of the Court of the Subordinate Judge of Ramnad at Madura. The appeal arises out of certain execution proceedings, and the principal question to be determined is whether in the case of cross decrees for money the right of the party holding the decree for the larger amount to set off the smaller decree against him is defeated by reason of the smaller decree having been attached by third parties.

The facts that give rise to the appeal are not in dispute and can be stated with reasonable brevity.

On November 27, 1911, the appellants father, one Ramanathan Chettiar, obtained a decree for a sum of Rs.46, 253 odd with further interest and costs against the first respondent and his father Subrahmanyam Chettiar in Original Suit No. 77 of 1911 in the Court of the Temporary Subordinate Judge of Ramnad. On September 12, 1917, the first respond