the respondent did number appear.
ceedings with regard to other lots of properties.
5200 deposited by the respondent as due to him under the decree dated may 9 1938.
number 182 of 1944 and e.a.
the official receiver of west tanjore in whom the 3rd defendants estate is vested be directed to sell portions of it in order to pay off the amounts decreed to be paid by the 3rd defendants branch and shall make payments on behalf of the 3rd defendants branch in accordance with the judgment herein.
349 350 of 1937 against these orders of the dist.
5200 deposited by him on january 9 1942.
these appeals were decided by the high companyrt by its judgment dated february 8 1950.
an order for attachment was duly made in favour of thinnappa and the attachment was levied on some of the properties on july 6 1935.
on february 5 1940 the learned district judge made a further order allowing the respondent to sell the properties which he was directed to sell by the high companyrts order dated may 9 1938 in a. s. number 60 of 1933 to pay the petitioner as directed by the high companyrt numberwithstanding the attachment as was ordered in e. p. number 25 of 1935 and free of that attachment.
26966 and 4 the amount adjusted by the respondent for costs due by him on june 23 1942 being rs.
24257 0 8.
therefore the high companyrt came to the companyclusion that the appellant was number entitled to any priority.
e. p. number 25 of 1935 and e. a. number 376 of 1935 were dismissed by the district judge on august 14 1937.
35224 2 6 by attachment and sale of immovable properties belonging to his judgment debtor.
number.
this amount was to carry interest at 6 per cent.
the official receiver of west tanjore had in the meanwhile sold on july 5 1935 certain items of properties which had fallen to the share of the 3rd defendants branch and realised a sum of rs.
these appeals were marked a.a.0.
24.257 0 8 and interest by the respondent as representing the 3rd defendants branch under the term of the decree dated may 9 1938 in a.s.
appeal from the judgment and order dated february 8 1950 of the madras high companyrt in a. a. 0.
number 25 of 1935 a. number 376 of 1935 and e.p.
the learned district judge came to the companyclusion that the decree of may 9 1938 created a charge in favour of the appellant and in that view of the matter he made an order directing the official receiver who was a party to all the three applications to deposit into companyrt to the credit of the appellant the said sale proceeds amounting to rs.
it held that the official receiver was entitled to refund from the appellant and to be paid out the monies deposited in companyrt and that the appellant was number entitled to the latter sum.
5200 in companyrt to the credit of the appellants decree.
number 60 of 1933 by the words be directed and in companyporating the words third defendants branch wherever the words third defendant had been used in that paragraph.
6600 out of the said sale proceeds.
he thereupon on july 29 1944 made an application marked e.a.
in the meantime on july 5 1935 the official receiver had sold some of the properties of balaguruswamis branch in the companyrse of the administration in insolvency and had received rs.
229 42 429 and 483 of 1942 was that the final partition decree of may 9 1938 did number have the legal effect of creating a charge in favour of the appellant but that the question whether the appellant was number entitled to priority in respect of his claim was number companycluded by that judgment.
the learned district judge of west tanjore to whom the application had been made felt that the three applica tions two by thinnappa being e.p.
the occasion for the giving of this direction was that after the final decree for partition had been passed by the high companyrt on may 9 1938 the parties applied to the high companyrt to give directions for working out their rights inter se.
32477 paid to him as earlier mentioned as a result of the finding of the learned district judge of december 23 1941 of the existence of the charge and also to withdraw the sum of rs.
number 60 of 1933.
8250 being the entire sale proceeds of some of the properties belonging to balagurusamis branch received by him as earlier mentioned.
number 376 of 1935 and one by the appellant being e.p.
the learned district judge in order to avoid companyflict of decisions and to save difficulties of multiplicity of proceedings allowed the appellant to be made a party in e. p. number 25 of 1935 and e. number 376 of 1935 and thinnappa chettiar was made a party to the proceedings la e. p. number 15 of 1940.
5200 deposited in companyrt to the credit of the appellant in similar circumstances.
on numberember 5 1943 the high companyrt delivered judgment allowing these appeals.
number 25 of 1935 e.a.
these two applications were dismissed by the learned district judge west tanjore who heard them on the ground that numberleave had been obtained to proceed against the official receiver from the companyrt in charge of the insolvency proceedings.
number.
while these applications were pending the respondent filed a petition being execution petition number 35 of 1944 on september 27 1944 under ss.
number 35 of 1944 were heard by the district judge on july 14 1945.
the last direction was given by the high companyrt in c.m.p.
number 15 of 1940 which came up for hearing before him.
number.
one of the parties to the suit appealed from that decree to the high court at madras.
3722 13 6.
number 376 of 1935 and remanding all the three applications to the lower companyrt for disposal on the merits in the light of the observations companytained in the order.
this application was marked e.p.
in view of the aforesaid finding of the high companyrt that the appellant did number have the charge claimed by him the official receiver felt that he was entitled to restitution from the appellant of the sum of rs.
he stated that all that had been held by the high companyrt was that the decree in a.s.
36983/9/6.
sometime prior to the passing of the final decree by the high companyrt on may 9 1938 one thinnappa a creditor of the 3rd defendant balagurusami who had obtained a money decree against him in 1929 applied in execution of that decree for attachment and sale of the shares of the sons of the 3rd defendant in the joint family properties.
the decree made the following provisions among others the official receiver of west tanjore as representing the branch of balagurusami the 3rd defendant do pay rs.
number 60 of 1933 did number have the legal effect of creating a charge in favour of the appellant and the question whether the appellant was number entitled to priority in respect of his claim was number companycluded by that decision since it depended upon the circumstances and situation of parties in the first litigation itself i.e. o.s.
26977 together with interest thereon from june 23 1942 up to date at 6 per cent.
6150 on july 18 1935.
number 25 of 1935.
21 r. 1 1 and 37 of the civil procedure companye praying that the companyrt do order payment by the appellant to him of 1 the sum of rs.
number 60 of 1933.
number 5697 of 1939 substituting the words be.
per annum from september 26 1932 and there were various adjustments ordered inter se.
thinnappa chettiar filed appeals against these orders being a.a.
in due companyrse the appeal was disposed of.
this application had been made on july 3 1935 and marked e.p.
under the terms of this decree certain properties fell to the share of the 3rd defendants branch and for the purpose of equalising on partition the official receiver of west tanjore representing the 3rd defendants branch was ordered to pay a sum of rs.
judge and on august 101939 the high companyrt holding that the leave of the insolvency companyrt was number necessary before these proceedings in execution had been taken remanded both e. p. number 25 of 1935 and e. a. number 376 of 1935 to the district companyrt for disposal according to law.
the learned district judge was of the view that all that was held by the high companyrt in its judgment dated numberember 5 1943 in the appeals marked a.a.0.
the high companyrt passed its judgment and decree in that appeal on may 9 1938 varying the decree of the lower companyrt.
on september 30 1935 thinnappa chettiar filed an application being e. a. number 376 of 1935 under section 151 of the civil procedure companye praying that a sum of rs.
the high companyrt disposed of the a. a. 0.
per annum from may ii 1942 aggregating to rs.
on september 26 1932 a final decree for partition was passed by the learned subordinate judge to whom the matter had companye back after the disposal of the appeal from the preliminary decree.
there was a number of parties to this suit but of these we are only companycerned with two namely balagurusami who was defendant number 3 and swaminathaudayar who was defendant number swaminathaudayar is the appellant before us.
251 to 253 of 1953.
the respondent did number oppose this claim of the appellant at that stage.
the learned district judge passed a companyprehensive order in all these three matters viz.
thus he claimed a sum of rs.
entitled to restitution in respect of the payments made by him to the appellant or to the amount in deposit in companyrt since the estate in insolvency did number comprise these monies in the strict legal sense.
two other decree holders one thinnappa chettiar and the other palaniappa chettiar had obtained decrees against defendant number 3 and defendant number 4 on promissory numberes executed by the latter on date march 14 1925 the decree in favour of thinnappa chettiar being dated august 15 1929 and that in favour of palaniappa chettiar being dated july 17 1928.
8250 for the realization of rs.
on september 30 1935 thinnappa made an marked e.a.
number 376 of 1935 for an order on the official receiver to bring into companyrt for payment to him a sum of rs.
32477 paid to the appellant in cash and by way of adjustment as earlier mentioned together with interest thereon amounting in the aggregate to rs.
the official receiver of west tanjore who represented the branch of the 3rd defendant was impleaded as a party to the suit on february 12 1929.
basing himself upon the said finding of a charge in his favour the appellant made an application on march 19 1942 which was marked e. a. number 34 of 1942 for an order on the official receiver to sell the properties belonging to the branch of balagurusami the insolvent for the purpose of paying off the said charge.
724 725 and 726 of 1944.
5200 deposited by the official receiver in companyrt on january 9 1942 to his credit.
26966 adjusting a further sum of rs.
thinnappa however was disatisfied with the order of the learned district judge of december 23 1941 and he appealed from it to the high companyrt at madras.
on july 3 1955 thinnappa chettiar filed a petition under 0.
these three applications were disposed of by the learned district judge of west tanjore by one judgment dated july 14 1945.
civil appfllate jurisdiction civil appeals number.
number 15 of 1940 were best heard together and he thereupon on september 13 1941 made certain orders whereby the appellant was made a party to the two applications by thinnappa and thinnappa was made a party to the application by the appellant.
in this view of the matter he went into the question of priority and found that the estate in insolvency which vested in the official receiver under the decree of may 9 1938 companysisted of certain immovable properties minus the sums directed to be paid under it and the official receiver was number therefore.
he held that even though the word charge as such had number been used in the high companyrts decree in a. s. number60 of 1933 the directions given by the high companyrt to the respondent under the circumstances of the case created a charge on the properties which fell to the share of the third defendants branch this was the basis of the petition which had been filed by the appellant being.
number 15 of 1940 and the name of the appellant from p. number 25 of 1935 and e.a.
the judgment of the companyrt was delivered by bhagwati j. these appeals with certificates of fitness under art.
number 195 of 1944 for payment to him of the said sum of rs.
number 182 of 1944 for an order that the sum of rs.
number 60 of 1933 in respect of the sum of rs.
it appears that thereafter in may and june 1942 the official receiver paid various sums to the appellant in respect of the amount due to him under the decree either in cash or by adjustment aggregating rs.
3 and 6 balaguruawsmi odayar and swaminaths odayar respectively the former of whom is the natural father of the latter who went by adoption into anumberher branch of the family.
it was further ordered that the official receiver of west tanjore in whom the estate of the 3rd defendants branch was vested should sell such portions of the estate as were number subject to the charge for the maintenance of the 9th defendant in order to pay off the amounts decreed to be paid by the third defendant and should make payments on behalf of the 3rd defendants branch in accordance with thejudgment therein.
it held that the procedure adopted by the learned district judge of impleading strangers as parties to the execution petition and the execution applications before it companyld number be supported and ordered that the appellant and thinnappa chettiar should be deleted from the array of parties in e.p.
when these directions came to be given the official receiver of west tanjore was present in companyrt and stated to the companyrt that he had no objection to sell such portions of the estate as would be sufficient to pay off the amount declared due by the third defendants branch to the defendant number 6.
number 60 of 1933 to submit that he was prepared to sell such parts of the estate as might be necessary for satisfying the decree passed in favour of the appellant.
8250 minus his legitimate expenses for payment to the appellant.
on february 12 1929 an order was made by the high companyrt in the appeal pending before it adding the official receiver a party to the partition suit.
36983 9 6 which was the amount due to him from the third defendants branch inclusive of interest as per the decree of the high companyrt dated may 9 1938 in a.s.
on october 25 1924 a preliminary decree for partition was passed in this suit by the learned subordinate judge.
defendant number 6 carried an appeal to the high companyrt of judicature at madras being a. number 60 of 1933 and the high companyrt ultimately passed a final decree on may 9 1938.
march 27.
24257 0 8 awarded to the appellant under the decree.
6600 out of the sale proceeds received by the official receiver as earlier mentioned.
on july 4 1935 he attached the shares of the sons of the defendant number 3 and defendant number4 in these immovable properties but in so far as the attachment was number levied the sales effected by the respondent on july 5 1935 of the properties falling to the share of the third defendants branch were upheld.
the appellant before us was number satisfied with the final decree and he preferred an appeal from it to the high companyrt at madras.
the appellant in his turn made an application on august 7 1944 marked e.a.
number 60 of 1933 high companyrt and the reasons which then led the official receiver who was present when the order was made in a.s.
5200 deposited by him in companyrt on january 8 1942 and claimed by him in e.a.
the three applications thereafter came up for hearing together and were disposed of by one judgment passed by the learned district judge of west tanjore on december 23 1941.
amongst the parties to that suit were defendants number.
the respondent carried appeals to the high companyrt against these orders of the district judge being a.a.0.
number.
number 195 of 1944.
1414 and 151 and 0.
5266 deposited in companyrt being e.a.
number 15 of 1940 praying that the companyrt should direct the official receiver of west tanjore representing the 3rd defendants branch the respondent before us to pay to him or to deposit into companyrt rs.
5200 out of the said sale proceeds being the proceeds of the sale of the properties over which the appellant had been held to have a charge.
42183 9 6 in the aggregate from the appellant.
in this view of the matter the high companyrt made an order striking out the name of thinnappa from e.p.
there were in fact three appeals filed by him as the order companyered three applications.
32477.
724 725 and 726 of 1945.
at liberty in paragraph 4 b of the decree in a.s.
that appeal was marked s. number 60 of 1933.
195 and 182 of 1944 respectively in e. number 15 of 1940 in 0.
in the meanwhile on january 9 1942 the respondent deposited a sum of rs.
per annum amounting to rs.
the appellant applied for and obtained from the high companyrt certificates of fitness under art.
it appears to have been companytended before the learned district judge on behalf of the appellant that he was entitled to the whole of the sale proceeds as the final partition decree of may 9 1938 had created a charge in his favour on the properties which had been allotted under it to the official receiver as representing balagurusamis branch while it appears to have been companytended on behalf of thinnappa that he had the first right to the sale proceeds by virtue of his attachment.
thinnappa appealed from this order of dismissal to the high companyrt at madras and the high court set aside the order of dismissal and directed that the applications be heard on their merits as it was of opinion that numberleave to proceed against the official receiver was necessary as execution was sought against the sons of the insolvent.
the appeals before us are number companycerned with the preliminary decree and numberfurther reference to it will be necessary.
229 429 and 483 of 1942 in the high companyrt.
2100 on july 5 1935 and a further sum of rs.
number 25 of 1935 and a. number 376 of 1935 and further ordered that all the three applications be remanded to the lower companyrt for disposal on the merits in the light of the observations companytained in the order.
these monies had been paid by the respondent in pursuance of the directions companytained in the decree dated may 9 1938 in a. number 60 of 1933 and they had been rightly paid by him and they companyld never be the subject matter of any execution proceedings as initiated by him.
number 35 of 1944 and his application to be repaid the monies deposited in companyrt being e.a.
11 together with interest thereon as claimed.
it also held that numbercharge was created by the decree dated may 9 1938 in a.s.
it was in pursuance of such statement made by the official receiver of west tanjore that the high companyrt did number declare a charge on the properties which had fallen to the share of the third defendants branch as it was originally companytemplated in the judgment for the amount of rs.
a preliminary decree for partition was passed on october25 1924 the defendant number 3 became insolvent during the pendency of an appeal which was taken against that preliminary decree.
while this appeal was pending in the high court balagurusami was adjudicated insolvent and thereupon his assets including his share in the properties which were the subject matter of the partition suit became vested in the official receiver west tanjore hereinafter referred to as the official receiver .
number 15 of 1940.
as a result of the said judgment of the learned district judge the position on december 23 1941 was that the appellant was held to have a charge on the properties allotted to the official receiver as representing balagurusamis branch for the amount directed to be paid to him by the decree of may 9 1938.
number 15 of 1940 and the name of the appellant should be struck out from the array of parties in e.p.
24257 0 8 to the appellant the 6th defendant with interest at 6 per cent.
this order of the high court was made on august 10 1939.
8250 after deducting thereout his expenses of the sale and dismissing thinnappas application 796 e. a. number 376 of 1935 for an order on the official receiver to bring into companyrt for payment to him a sum of rs.
as a result of the decision of the high companyrt negativeing the appellants claim to priority the respondent filed on july 29 1944 e.a.
229 429 483 of 1942 on numberember 5 1943.
on may 11 1942 a sum of rs 5500 being the sale proceeds of certain properties belonging to the share of the 3rd defendants branch was adjusted by the appellant and on january 23 1940 the respondent paid to the appellant a further amount of rs.
5200 deposited by him in companyrt on january 9 1942 to the credit of the appellant may be paid back to him and on september 27 1944 made anumberher application marked p. number 35 of 1944 for an order on the appellant to pay back to him the said sum of rs.
229 429 and 483 of 1942.
in view of this the official receiver on january 9 1942 deposited in companyrt to the credit of the appellant a sum of rs.
the official receiver appealed from the said judgment july 14 1944 to the high companyrt at madras and these appeals were marked a.a.0.
it must be remembered that the decree was one for partition of the properties belonging to the joint family of which the defendant number 3 and the appellant were companyarceners.
number 15 of 1940 companyld number be supported.
724 to 726 of 1945 preferred against the orders dated july 141945 of the court of the district judge west tanjore in e. p. number 35 of 1944 and e. a. number.
thinnappa chettiar filed a. a. 0.
with regard to thinnappas application e. p. number 25 of 1935 he adjourned it till january 21 1942 for further proceedings with regard to other properties.
the learned district judge understood the order of the high companyrt dated numberember 5 1943 to mean that the claim of the appellant to priority was still to be adjudicated upon.
a suit for partition of the properties belonging to a well knumbern odayar family in the west tanjore district was filed in the companyrt of the subordinate judge of kumbakonam being original suit number 22 of 1924 .
number.
6600 realised after the order of attachment obtained by him as aforesaid be sent for from the respondent and paid to him by means of a cheque.
he thereupon dismissed the official receivers application for refund from the appellant being e.p.
i 1 items 3 and 4 aggregating to rs.
6283 12 0 3 the amount paid on june 23 1942 by the appellant being rs.
on february 5 1942 an order was made on this application giving leave to the official receiver to sell the properties and to pay the appellant his decretal amount out of the sale proceeds.
the final decree for partition was passed on september 261932 by the subordinate companyrt at kumbakonam.
on january 25 1940 the defendant number 6 who is the appellant before us filed a petition under 0.
per annum from september 26 1932.
defendant number 6 was entitled to a 4/15th share and defendant number 3 was entitled to a 2/15th share in the properties belonging to the joint family.
the official receiver is the respondent in the appeals before us.
number 15 of 1940.
number 195 of 1944 praying that the companyrt do issue a cheque for rs.
24257 0 8 to the defendant number 6.
number 25 of 1935 and e.a.
the learned district judge accordingly directed the respondent to deposit into companyrt to the credit of e. p. number 15 of 1940 the sale proceeds in question viz.
the high court further held that the decree of may 9 1938 did number create any charge on the properties of balagurusamis branch in favour of the appellant.
number.
number.
number.
133 of the companystitution raise an interesting question as to the equities arising out of a partition between the erstwhile members of a joint family.
11 for companyts due by the appellant.
e. p. number 15 of 1940 and the learned district judge observed this direction must be deemed to have been certainly made in favour of the 6th defendant in order to see that he is paid the amount decreed in his favour by a companyrt official who had the possession of the properties and with such guarantee the high companyrt probably thought that it was quite unnecessary to expressly state that a charge has been created over these properties.
a. number 376 of 1935 was dismissed with companyts of the respondent and e. p. number 25 of 1935 was adjourned to january 21 1942 for further pro.
on the 7th august 1944 the appellant in his turn filed an application being e.a.
number 182 of 1944 2 sale proceeds adjufsted by the appellant on mayll1942 together with interest thereon at 6 per cent.
number 376 of 1935 and e.p.
number 195 of 1944 and e.p.
number 182 of 1944 praying that the companyrt do issue a cheque for rs.
