Decided on July 26,1944

The Imperial Bank Of India Appellant
Balasubramania Pandia Tevar And Ors. Respondents


- (1.) THIS and the connected appeals are filed against the order of the District Judge of Tinnevelly passed in several proceedings which were taken to enforce the rights of various decree -holders and the Imperial Bank of India, the appellant, and raise a common question whether certain decree -holders can obtain rateable distribution under Section 73 of the Code of Civil Procedure of the amounts deposited in O.S. No. 3 of 1922 on the file of the lower Court which related to the succession to the Uthumalai estate. That estate was originally held by one Navaneethakrishna and on his death his adoptive mother Rani Meenakshi Sundara Nachiar succeeded to the estate. She died in 1921 and disputes arose as to the succession to the zamindari. There were three claimants. One claimed to be the father's sister's son of the last male holder and filed O.S. No. 1 of 1922 on the file of the lower Court. The second claimant was one Marudappa Tevar who claimed that he was adopted by the deceased Rani Meenakshi Sundara Nachiar and he filed O.S. No. 2 of 1922. Lastly, one Subbayya Tevar as the maternal uncle of the last male owner filed O.S. No. 3 of 1922 in the same Court. Marudappa Tevar who claimed by adoption also put forward an alternative claim under a will executed by Rani Meenakshi Sundara Nachiar. The District Judge upheld the claim of Subbayya Tevar as the maternal uncle of the last male owner. He negatived the adoption of Marudappa Tevar and also the claim under the will put forward by him. Thus O.S. No. 3 of 1922 was decreed and the other suits were dismissed. There were appeals to the High Court in all the suits. The claim of Subbayya Tevar as the maternal uncle was upheld. Marudappa's adoption was negatived but he was held entitled to the bequests under Rani Meenakshi Sundara Nachiar's will, the will being held to be valid and operative. Further appeals were taken to the Judicial Committee and the decision of the High Court was confirmed. (Vide Bala Subramania v. : AIR1939Mad168 )
(2.) SUBBAYYA Tevar, the claimant who succeeded in all the Courts, was in need of finance for the conduct of the litigation. One Subramania Chetti undertook to finance him and by April, 1929, had advanced very large sums of money. By that time the District Court's judgment had been delivered and appeals had been filed in the High Court. It was expected that the unsuccessful parties would apply for stay of execution of the decree of the lower Court which directed delivery to the successful party of possession of the estate and the moneys which had been collected by the receiver appointed during the pendency of the litigation in the trial Court. There was an agreement, Ex. I, between Subramania Chetti the financier and Subbayya Tevar by which the amount advanced by Subramania Chettiar till then was settled at nine lakhs of rupees. It was provided inter alia that this sum of nine lakhs should not carry interest from the 12th February, 1929, that Subramania Chetti should be entitled to the income from the entire pannai (private) lands in the zamindari as and from Fasli 1339 except to a small extent which was negligible, that the Chetti was entitled to draw the monies deposited in Court, if necessary, by giving security, and that the money when drawn should appropriated towards the discharge of the amount of nine lakhs. It was also provided that the Chettiar should have a charge over the Zamindari and its properties except certain temples and their properties of which the zamindar was the dharmakartha.
(3.) AS expected, applications were filed for stay of execution of the decree in various suits and the applications were all heard together by the High Court which passed a common order on the 8th August, 1 -929. In regard to the moneys then in deposit in the District Court, it was ordered that Subramania Chettiar may, on furnishing security to the satisfaction of the District Court, draw the whole or any portion from time to time. As regards delivery of possession the order was that Subbayya Tevar may take possession of the zamindari on giving security. In pursuance of this order, Subramania Chettiar drew three lakhs of rupees after giving security. The appeals in the High Court were all disposed of by a common judgment, dated the 2nd April, 1935. Before that date several persons had obtained decrees against Subramania Chettiar and had levied attachments over the moneys in Court to the credit of O.S. Nos. 1, 2 and 3 of 1922, District Court, Tinnevelly and the attachments were made between the 15th September, 1932 and November, 1934. Before disposing of the appeals, on the 2nd April, 1935, the High Court directed Subramania Chettiar to be made a party respondent to some appeals in order to enable him to watch the litigation and prevent any collusive compromise to his detriment in the further stages of the litigation. On the same day the learned Judges passed an order in order to give effect to an agreement which had been entered into by that date between Subramania Chetti, Subbayya Tevar, and the Imperial Bank, which had advanced large sums of money to Subramania Chetti in order to enable him to finance the litigation. The order empowered the Imperial Bank to draw a sum of four and a half lakhs of rupees from and out of the moneys deposited to the credit of the original suits in the lower Court on their undertaking to pay back the said moneys in the event of the decrees passed by the High Court being reversed by the Privy Council. This was to be applied pro tanto in discharge of Subbayya Tevar's liability to the Chettiar. This order was also incorporated in the decrees passed by the High Court in the various appeals. When passing this order and when incorporating the same in its decrees the High Court was unaware of the fact that there were numerous decree -holders including the Indian Bank, Ltd., who had obtained decrees against Subramania Chettiar and had levied attachments against his interest in the moneys in question. One of such creditors, the Indian Bank, having come to know of the order in favour of the Imperial Bank put in an application stating that the order empowering the Imperial Bank to draw 4 1/2. lakhs was made without notice to the creditors and that it would prejudicially affect the many creditors who had attached the said moneys prior to the date of the order. The learned Judges passed an order on the 9th May, 1935, and said this: In disposing of appeals Nos, 159 of 1929, 411, 428 and 429 of 1930, we passed certain orders on 2nd April, 1935, permitting certain funds lying in. the Court below to be drawn out. On the consent of the parties, we permitted the funds to be drawn out by the Imperial Bank (who is not a party to the appeals) on behalf of the successful party. It is now brought to our notice that that there may be strangers who have attached the funds as a result of the attachment order. Our order is not intended to affect such persons. All such claims will have to be dealt with by the appropriate courts having jurisdiction to deal with the matter and it is to be understood that the power of such courts to deal with it is not affected by any order we have passed.;

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