Money deposited in Court by a tenant under Section 9 of the Delhi and Ajmer-Merwara Rent Control Act, 1947, is not liable to attachment in execution of a decree because it is in custodia legis.

Bhandari, J.

1. This petition raises a question of considerable importance and difficulty, namely, whether a sum of money which is deposited in Court by a tenant under the provisions of Section 9 of the Delhi and Ajmer-Merwara Rent Control Act, 1947, is liable to attachment in the execution of a decree.

2. The facts of the case are simple and not in dispute. One Gulzarl Mal, a landlord of Delhi, brought a suit for the ejectment of his tenant Rup Chand on the ground that the latter had failed to pay the rent of the shop leased out to him. Taking advantage of Section 9 of the Delhi and Ajmer-Merwara Rent Control Act, which declares that no decree for ejectment shall be passed against a tenant who deposits in Court the arrears of rent together with costs on the first hearing of the suit, Rup Chand deposited in Court a sum of Rs. 1522/- on account of arrears of rent and the costs of the suit. The landlord who held a previous decree against the tenant in a sum of Rs. 2,862/- promptly proceeded to attach this amount in the execution of that decree. The tenant objected to the attachment but his objections were overruled both By the executing Court and the learned District Judge on the ground that as the tenant who had deposited the money in Court had disposing power or control over the amount, the amount was not exempt from attachment. The tenant has come to this Court in second appeal and the question for this Court is whether the Courts below have come to a correct determination in point of law.

3. Section 60, Civil P. C. declares that all property belonging to the judgment-debtor or over which he has a disposing power which he may exercise for his own benefit is liable to attachment and sale in the execution of a decree. The question is whether a Judgment-debtor can be said to have disposing power over property in custodia legis, that is property or money deposited in Court under the provisions of law or in the custody of an officer of a Court under Civil process and which is held to be disposed of in some particular manner prescribed by law or according to orders of the Court.

4. A person can have no disposing power over, property which is in the custody of the Court, for it Is a general proposition of law that in the absence of a specific provision to the contrary, the property which is in custodia legis cannot be attached in the execution of a decree unless the specific purpose for which property is held has been fulfilled. Thus money paid into Court in satisfaction of a judgment or deposited in Court under statute is not attachable. Protection from attachment does not extend to property where the custody of the officer is not custodia legis, or where the levy or custody is invalid or wrongful, or where legal custody is discharged or abandoned, or where for any reason whatsoever the custody is changed from custodia legis into a personal obligation to the owner. If the property in custodia legis exceeds in value the amount for which it is being held, the excess alone is liable to attachment.

5. In view of the importance of the matter, I consider it desirable to mention certain cases which illustrate the principles mentioned above. In -- Ex parte Banner; In re Keyworth, (1874) 9 Ch A 379 (A), the plaintiff brought an action upon an overdue bill of exchange for £ 1200 against the acceptors. The defendants obtained leave to appear & defend the action upon paying into Court £880 to abide the event. Shortly thereafter the defendants filed a liquidation petition. The Liquidator claimed the £880 for distribution among the creditors generally but Bacon C. J. disallowed the claim observing:

"According to all the cases cited, the £880 paid into Court ceased, upon its being paid into Court, to be the property of the debtors; it was no longer part of their estate. If the action had gone on to judgment, and the Judgment had been for the plaintiff for £ 880, the matter would have been quite clear and plain; the money would have belong