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TMI Blog1936 (8) TMI 3X X X X Extracts X X X X X X X X Extracts X X X X ..... ontention before me is that the time between January 29, 1034, and February 8, 1934, cannot be allowed. 4. It is perhaps necessary to add that the Additional District Judge at Ellichpur is an Additional Judge to the District Court at Amraoti, and although he sits at Ellichpur he is attached to the District Court at Amraoti. According to the distribution of work in that Court, all appeals below ₹ 1,000 in value are to be heard by this Additional Judge. It is argued he forms a separate Court altogether and so if a man chooses to file an appeal in the wrong Court through the negligence either of his Pleader or himself, he cannot claim the benefit of Section 5 of the Indian Limitation Act. The first question then which I have to determine is whether the Additional District Judge at Ellichpur forms a separate Court, or. is merely one of the Judges attached to the District Court at Amraoti. I do not think there can be any doubt about the matter. 5. The different Civil Courts in Berar have been constituted under the Central Provinces Courts Act of 1917 as applied to Berar. Section 16 directs the establishment of a District Court for each Civil District. It is to be noted that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is not clear whether there is only one officer appointed for this purpose in the District Court at Amraoti or several. But it would make no difference, for if an officer appointed to receive a certain class of appeals accepts another by mistake, the appellant can hardly be blamed for that. He cannot be penalised for a mistake made by an officer of the Court itself, especially as it is a moot point whether Order XLI, Rule 1, contemplates several such officers or only one. 10. The procedure normally contemplated is undoubtedly a presentation to one officer who then sends it to the Judge concerned in accordance with the distribution list before him. It may be that, for the convenience of the public, auxiliary officers are also appointed at Ellichpur, but it can hardly be argued that a presentation to an officer of the District Court appointed to accept appeals, who holds himself out as the right person to accept the appeal in question and actually accepts it, is an illegal presentation. If it is, then I quite agree with the learned Additional District Judge that it would be a fit case for the application of Section 5 of the Indian Limitation Act, but as I say, I do not think it i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , distribution. The former enacts that: Where property not in the custody of any Court is under attachment in execution of decrees of more Courts than one, the Court which shall receive or realize such property and shall determine any claim thereto and any objection to the attachment thereof shall be the Court of highest grade. 15. It is not necessary to reproduce more of the section than this for the purposes of the present case. It is clear from this that, the Court of the Subordinate Judge, First Class, was the right Court to receive the money and it had thereupon to decide any claim to it and any objection to its attachment. No objection was raised to its attachment but a claim was made for rateable distribution, and in my opinion this is clearly a claim with respect to the money and so had to be decided by that Court. 16. It was argued on behalf the appellants that Section 63 of the Civil Procedure Code, cannot apply because Section 73 of the Code deals with the matter of rateable distribution, and under it a claimant has to make an application for execution to the Court which holds the assets beware it actually receives them. It is admitted that none of the respondents mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... necessary. Pollock, A.J. C. decided similar point in Hazarimal v. Dama 29 N.L.R. 152 : 143 Ind. Cas. 417 : A.I.R. 1933 Nag. 42 Ind. Rul. (1933) Nag. 170 and held that a party's rights would remain unaffected by the conversion of the property into money in this manner. It is true the learned Additional Judicial Commissioner was dealing with a case of mortgage which creates a charge on the property and that mere attachment can create no charge but the doctrine is not as narrow as that. It is known generally as the right to follow, and occurs most frequently in equity in relation to breaches of trust. 19. The House of Lords examined the doctrines elaborately in Sinclair v. Brougham (1915) A.C. 398 : 83 L.J. Ch. 465 : 111 L.T. 1 : 30 T.L.R. 315 : 58 SJ 302 and the Lord Chancellor said: It is, in my opinion, impossible to confine the right at law to follow to cases where there is a fiduciary relationship. 20. Lord Dunedin, dealing with the argument that the doctrine was limited, pointed out that other great systems of law had not been unable to solve similar problems and added: Is English equity to retire defeated from the task which other systems of equity have conquered? And ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en that Court is the one to determine all claims relating to it, including claims for rateable distribution.
24. Under Section 73 attachment is not necessary so far as the creditors seizing rateable distribution are concerned. All that is required is an application for execution and that was made in every case before January 28, 1932, when the money reached the Court of the Subordinate Judge, First Class. If an actual attachment was not necessary under Section 73, I do not see why it should be required under Section 63. As I have said, the two sections must be read together.
25. As a matter of fact the learned Counsel for the appellants appears to be under a misapprehension of fact so far as the respondent Atbal Singh is concerned. I find he attached the judgment-debtor's movable property on October 31. 1931, and as the sale of the field was held on August 26, 1931, and confirmed on October 6, 1931, it had by then become part of his movable property. However, in the view I have taken, this would not make any difference.
26. The appeal is dismissed. As regards costs, since Nathusa is the only one who has appeared, he alone will be entitled to the costs of this appeal. X X X X Extracts X X X X X X X X Extracts X X X X
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