VAID BANARSI DASS Vs. HARKEWAL SINGH

JUDGEMENT

(1.) This revision petition is directed against the order of the executing Court dated the 4th February, 1983, whereby the application filed on behalf of the petitioner Vaid Banarsi Dass was dismissed and he was directed to deposit the amount of Rs. 3,516.53 paise in Court for payment to the decree holder Harkewal Singh respondent etc.

(2.) The relevant facts are that the decree holder Harkewal Singh etc., respondents No. 1 to 4, obtained a decree on 2nd December, 1980 for a sum of Rs. 3,900/- along with costs and interest against Karnail Singh, judgment-debtor respondent No. 5. Pending the suit, the decree holders got an order of attachment on Ist June, 1979 under Order 38 Rule 5 of the Code of Civil Procedure (briefly the Code) by virtue of which the amount of the judgment-debtor Karnail Singh in State Bank of Patiala, Branch Malerkotla, was attached. Meanwhile Vaid Banarsi Dass also obtained two money-decrees against Karnail Singh on 20th November, 1979 for Rs. 2,500/- and 7th November, 1979 for Rs. 500/- respectively. In execution of the said decrees, Vaid Banarsi Dass recovered the said amount from the Bank which was got attached by the decree-holders Harkewal Singh etc. under Order 38 Rule 5 of the Code on Ist June, 1979. Under these circumstances, the decree holder moved an application in the executing Court that the said vaid Banarsi Dass be directed to deposit the sum of Rs. 3,000/-, realised by him from Karnail Singh, as the said amount was already got attached by them under Order 38 rule 5 of the Code on Ist June, 1979. This application was contested by Vaid Banarsi Dass petitioner. However, the executing Court found that the decree holder had a prior claim over the amount, because of the attachment order dated Ist June, 1979 passed under Order 38 Rule 5 of the Code and therefore it directed Vaid Banarsi Dass to deposit the said amount of Rs. 3,516.53 paise for payment to the decree holder. Dissatisfied with the same, objector Vaid Banarsi Dass has filed this revision petition in this Court.

(3.) The learned counsel for the petitioner contended that in view of the provisions of Order 38 Rule 10 of the Code, the petitioner was not debarred from realising the amount attached under the said provisions, Order 38 Rule 5 C.P.C. In support of his contention, he also referred to S. Cassam v. K.S.M.M. Abdul Kader,1926 AIR(Rang) 85V.S.T. Venkata Keddiar v. S. Noordeen and Another, 1978 AIR(Ker) 11 and Bhagwan Das Pribhdas and Others v. Santokh Singh Saran Singh, 1968 AIR(P&H) 461. No judgment taking contrary view has been cited at the Bar. Order 38 Rule 10 of the Code reads as under :-