Money brought into court as security for satisfying any judgement is charged in favour of the plaintiff and the Official Assignee cannot claim the same ignoring the lien or the charge in favour of the plaintiff.

ORDER :- In this case, the Official Assignee cannot have the benefit of the money as claimed by him. The short facts are as follows :-

The respondent-plaintiff filed a suit against the defendant and sought for an attachment before judgement pursuant to which moneys were brought into court in compliance with the order of attachment issued and for averting the physical attachment of the properties of the defendant. Thereafter, the defendant filed an application for leave to defend. The plaintiffs counsel was conscious of the fact that the entire suit claim was paid by the defendant and in that light, he did not oppose the grant of leave to defend. It appears that the defendant became an insolvent. After adjudication, the Official Assignee, Madras as taken out the resent application for payment out of the suit money which was so brought into court as above. The application was under S.151, C.P.C. The City Civil judge after going through the facts was the view that the money should be deemed, in the circumstances, to have been charged for the benefit of the plaintiff and if at all, such a payment out could be made in favour of the Official Assignee subject to any lien which the plaintiff may secure at the end of the suit. He, therefore, found that the application for payment out by the Official Assignee was not maintainable as the suit was still pending and he dismissed the application. It is as against this the present revision petition has been filed.

2. It is common ground that the respondent-plaintiff file application for attachment before judgement contemporaneous with the filing of the suit for recovery of moneys from the defendant. An order under O.38, R.5, C.P.C. was issued Apparently, the said order was issued because the court was satisfied that the defendant with intent to obstruct or delay the execution of the decree that is likely to be passed against him is either about to dispose of the whole or any part of his property or is about to remove the whole or any part of the property from the local limits of the jurisdiction of the court. In order to subserve the ends of justice, an option was given to the defendant by the court to furnish security in such sum as may be specified in the order, so as to avoid a physical attachment of the property of to defendant. It was in this context that a sum of Rs. 5888 was brought to court. The defendant thereafter filed an application, the suit being one filed under O.37, C.P.C. for leave to defend. It was at this stage that the plaintiff being aware of the fact that in the proceedings under O.38, R.5, C.P.C. the entire suit amount has been brought to court, did not oppose the grant of leave and this circumstance was noted by the City Civil Judge who said that it was the fact of deposit of money which weighed with the court in granting the leave as also the stand taken the plaintiff who did not oppose such ant. Later, it appears that the defendant became an insolvent. The Official Assignee filed the present application for the benefit of the generality of the creditors stating that the amount as above brought to court should be intended and held to be for the benefit of the body of creditors of the defendant and the plaintiff solely cannot have the benefit thereto and appropriate it for himself to the prejudice of the general body of creditors. As each case has to be decided on its merits, it has to be found factually whether in the circumstances of this case the amount in court can still be said to be an amount belonging to the defendant free from any lien in favour of the plaintiff who (a) filed an application under O.38, R.5, C.P.C. to bring the amount into court, and (b) being conscious of such deposit by the defendant in court did not even oppose the application for the grant of leave to defend the suit instituted by the plaintiff.

A similar case was dealt with by Mr. Justice Sadasiva Iyer and Mr. Justice Napier in an unreported case in L.P.A. No. 364 of 1914. There, the