This reference raises a question of some importance which comes up frequently for consideration on the Original Side of the High Court.

In and by the decree in Civil Suit No. 423 of 1949, the applicant herein, who is the third plaintiff in the suit, became entitled to a sum of Rs. 3,800-10-0 out of the entire sum standing to the credit of that suit. He asked for payment out’ of a sum of Rs. 3,753-2-0 being the balance he was entitled to, after retaining a sum of Rs. 47-8-0 being the cost of stamps for engrossing the decree. On 20th April, 1951, the learned Master passed an order ordering payment out. An order of attachment of the moneys standing to the credit of the applicant in this suit was issued by the Court of Small Causes in execution of a decree obtained by one Krishnamurthi Ayyar against the applicant in Small Cause Suit No. 361 of 1951 and the said order of attachment was received in this Court on 26th April, 1951. Attachment was effected by this Court, and the original order was returned after service. Though the attachment was subsequent to the order for payment out, a cheque was issued in favour of the applicant in pursuance of the order of the learned Master dated 20th April, 1951, after deducting the amount for which the attachment was issued. Objection having been taken to it, the matter is posted before me for orders.

The contention on behalf of the applicant is that once an order has been made for payment out there is no fund in Court available for attachment and that the order of attachment must have been returned with the endorsement that there is no fund in Court available for attachment. In support of this contention, the view expressed by Kumaraswami Sastri, J., on 27th January, 1926, in Civil Suit No. 774 of 1923 in almost similar circumstances is cited which is as follows:-

“I think the correct rule is that, where a Court orders payment to be made, that order must be treated as if the payment had actually been made at the date of the order so as to prevent subsequent attachment on the money in Court. There is always a certain interval between the passing of the order and its issue and the payment being made on the strength of that order and I do not think that the partv should be prejudiced simply because there is delay. When he has actually got the order the proper course is to treat the order of payment as an actual payment so far as the rights of third persons to attach are concerned.”

A different view was taken by Rajagopalan, J., in Application No. 794 of 1951, in Civil Suit No. 181 of 1948, by his order, dated 26th February, 1951. In that case, in pursuance of a decree passed on 30th January, 1951, in terms of the memorandum of compromise certain payments were directed to be made out of the funds in Court to the parties to the compromise decree. Subsequent to the date of the decree, two attachments were received on 7th February, 1951. A similar reference was made to Rajagopalan, J., and the learned counsel for the applicant in whose favour pavment out order had been made relied upon the judgment of Kumaraswami Sastriar, J., in Civil Suit No. 774 of 1923, dated 27th January, 1926. The attaching decree-holder in Civil Suit No. 181 of 1948 took out application No. 794 of 1951 for directions to retain the attached amount, viz-, Rs. 1,604-4-0 and send it to the transmitting Court. With reference to the respective contentions of the applicant in whose favour payment out has been ordered and the attaching decree-holder, the learned Judge observed as follows:-

“From the records I find that there was an order of attachment issued by the Registrar, Court of Small Causes, to attach a sum of Rs. 1,604-4-0 and that the attachment was executed and the warrant returned. Mr. D. R. Krishna Rao for the respondent contends that since there was an order passed by this Court that the amount including this amount of Rs. 1,604-4-0 should be paid over to the respondent and since that order was long pri