ORDER
V. Neeladri Rao J.
1. This Civil Revision Petition was posted before the Bench in view of the reference made by Sri G. Rama-nujulu Naidu, J.
1 A. The facts which have given rise to this Civil Revision Petition are as under: The 2nd respondent herein filed O.S. No. 57/83, Sub-Court, Tanuku, a suit for partition as against his father, who is R-1 herein. That suit ended in a compromise. A decree for Rs. 3,513/-towards decree costs was passed in favour of R-1 herein as against R-2 in the said suit. R-1 herein filed E.P. No. 54/85 on 9-10-85 for execution of the said decree. He prayed for attachment of the immoveable properties and for sale of the same. The attachment was effected on 11-10-1985. R-2 herein raised some objections in the said execution petition. But he deposited the decretal amount of Rs. 3,513/- on 16-10-85 without prejudice to his contentions. On 28-10-85 R-l herein filed E. A. No. 282/85 praying for issual of a cheque for the said amount. On 9-12-1985 the learned Subordinate Judge passed the following order in the said E.A. No. 282/85:
“No further arguments advanced. The matters that took place before the decree can be probed at appropriate time. Now since the decree is on record the petitioner is entitled to the amount. Hence I allow the application on condition that the petitioner furnishes the third party security. For furnishing third party security — 16-12-85”.
R-1 herein get the security bond filed on 18-12-1985 and on 30-12-85 objections to security bond were filed.
2. The revision petitioners herein filed O.S. No. 431 / 84 on the file of the court of the District Munsif, Tanuku against R-2 herein for recovery of some amount. That suit was decreed on 14-3-85. They filed E. P. No. 201/85 on 27-12-85 under 0.21, Rule 52 C.P.C. praying for attachment of the amount of Rs. 3,513/- deposited by R-2 herein in E.P. 54/85 in O.S. No. 57/83, Sub-Court, Tanuku that attachment was effected on 3-1-86.
3. After the security bond was accepted
R-1 herein prayed for issual of a cheque in pursuance of the order D/-9-12-85 in E.A. No. 282/85. In view of the attachment which was effected in pursuance of the notice issued in E.P. No. 201/85 the learned Subordinate Judge observed on 3-4-86 that it would be considered after issual of the notice to the revision petitioners herein. After notice was given to them they filed E.A. No. 183/87 in E.P. 54/85 praying for issual of a cheque for Rs. 3,513/- i.e. the amount attached, in their favour or in the alternative it was prayed that the same should be distributed amongst them and R-1 herein by way of rateables. On 21-7-87 the learned Subordinate Judge dismissed E.A. No. 183/87 and ordered issual of a cheque. This civil revision petition was directed against the orders in E.A. Nos. 282/ 85, 183/87, 170/86 and 171/86.
4. When this civil revision petition had come up before G. Ramanujulu Naidu, J. it was contended for the revision petitioners that the impugned order is not in consonance with the judgment of this court reported in B. Thripurasundaramma v. State, AIR 1984 Andh Pra 305. But R-1 relied upon decision of Supreme Court reported in Kotak & Co. v. State of U.P., stating that the learned Subordinate Judge rightly held that the amount in deposit belonged to R-1 herein and as it ceased to be the amount of R-2, the attachment is not valid. The question that had fallen for consideration before the Supreme Court in Kotak & Co. v. State of U.P. (supra) is as to whether the amount in deposit can be held as appropriated in favour of the creditors after the order determining rateables was passed or whether it continued to be the amount of the Judgment-debtor. The Supreme Court referred to the judgment reported in Official Receiver of Tanjore v. M. R. Venkatarama Iyer, AIR 1922 Mad 31; Murli Tahilram v. T. Asoomal & Co., ; Basanta Kumar Bhatta-charjee v. Panchu Gopaldutta, ; Income-tax Officer, Ward C. Sangli v. Chandanbai Balaram Doshi, and held that those courts rightly decided that on passing an order determining the rateables the amount in deposit should be deemed to have been appropriated in favour
of the creditors and thereby the persons who are having claims against the Judgment debtor had no right to attach the amount in deposit. It was observed therein, after referring to the passage reported in Income-tax Officer, Ward C, Sangli v. Chandanbai Balaram Doshi, (cited as supra), as follows:
“By necessary implication it means that as soon as an order for rateable distribution is made, the amount ordered to be distributed will cease to be the property of the judgment-debtor. We are of the same opinion as that of the High Courts of Madras, Calcutta and Bombay.”
It was further observed therein that “as soon as the rights of the parties become crystallized, what then remains is to give effect to the determination made by the court by officials in charge of concerned departments dealing with Accounts and Cash which is a ministerial act. The rights of the respective decree-holders or claimants are governed by the order for rateable distribution passed by the Court as a result of the adjudication and determination made by the court.”
In this case the learned Subordinate Judge held by order D/-9-12-85 that the petitioner in E. A. No. 282.85 i.e. R-1 herein is entitled to the amount in deposit. Thus the court had decided, even before E.P. 201/85 was filed, that the amount in deposit belonged to R-1 herein and it ceased to be the amount of R-2 herein.
5. In the decision reported in Ranga Bashyam v. Sam Bandam, AIR 1952 Mad 540 it was held that “where the judgment-debtor against whom an order of attachment is made and the applicant in whose favour the order for payment out has been made is one and the same person, the amount would stand to the credit of the judgment-debtor and it cannot be contended that the amount cannot be attached. The above decision is also to the effect that when once an order for payment out has been made by the court, it amounts to appropriation in favour of the person who got the order for payment in his name.
6. But the learned counsel for the revision
petitioners urged that the order D/ – 9-12-85 is not a final order, and it is only a tentative orders, and as such the principle enunciated in Kotak & Co. v. State of U.P., is not applicable to the facts of this case. The point that has to be considered is as to whether R-l herein is entitled to realise the amount as per the order D/-9-12-85 if he satisfied the conditions therein. So long as that order stands, the court had to necessarily issue the cheque for the amount of Rs. 3,513/-in deposit, if R-1 herein furnished the security to the satisfaction of the court. Thus after compliance of the said condition i.e. the furnishing of security, R-1 has every right to realise the amount. Of course, if ultimately R-2 herein succeeds in E.P. No. 54/85 the question of restitution does arise. Hence merely because a condition was imposed subject to which R-1 was permilted to withdraw the amount it cannot be stated that the amount was not appropriated to the credit of R-1. When once the security is furnished i.e. the condition imposed is complied with, the only act that had to be done is to issue a cheque and there is no need to determine the rights and liabilities of the parties before issual of a cheque. Hence we are not persuaded to accept the contention for the revision petitioners.
7. Even the decision reported in S.R.R. & O. Mills Co. v. Addl. I.T. Officer, relied upon for the revision petitioners does not help them in support of their contention. Therein when one of the parties to a suit filed a petition praying for appointment of a Receiver to take possession of the plaint schedule properties, the other side was directed to deposit some amount. There was no order by the court to the effect that the party praying for appointment of a Receiver is free to withdraw the said amount with or without the security. In view of the facts/stated therein, it was held that there was no appropriation of the amount in deposit in favour of the person who filed the petition praying for appointment of a Receiver and as such the amount in deposit continued to be to the credit of the depositor. The decisions reported in Audiseshu v. Krishnamurthy, (1961) 1 Andh WR (SN) 17 and Pulleswara-
rao v. Kutumbarao 1977 Andh LT 472 relied upon for revision petitioners dealt with the scope of Section 73 C.P.C. of course, in Pulleswara Rao v. Kutumba Rao, 1977 Andh LT 472 the scope of O. 21, Rule 52 C.P.C. along with Section 73 C.P.C. was considered. In this case the revision petitioners filed E.P. 201/85 on 27-12-85 and thus long after 16-10-85 the date on which the amount of Rs. 3,513/- was deposited. It is manifest from Section 73 C.P.C. that rateables can be claimed by only such of those creditors who made applications for the execution of decrees for the payment of money before the receipt of assets by the court. Having realised the same, the learned counsel for the revision petitioners submitted, and rightly, that the revision petitioners are not entitled to rateables. Hence there is no need to advert to the decisions reported in Audiseshu v. Krishnamurty; and Pulleswararao v. Kutumbarao, or even the decision reported in Manora Bai v. Sultan Uakath, . For the same reason we feel it not necessary for disposal of this civil revision petition to consider in detail about the judgment reported in Pulleswararao v. Kutumba Rao and thus there is no need to express our opinion about the same.
8. Yet another contention for the claimants is that it is only the attaching court, but not the custody court, who can decide about the rateables. The second proviso to 0.21, Rule 52 C.P.C. is relied upon in support of the said contention. The second proviso to 0.21, Rule 52 C.P.C. was incorporated by way of an amendment by the Madras High Court in 1935 vide P. Dis. No. 445 of 1935. As such the said amendment is applicable in regard to A.P. State also. It is as follows:
“(ii) Provided further that, where the court whose attachment is determined to be prior receives or realizes such property, the receipt or realization shall be deemed to be on behalf of all the courts in which there have been attachments of such property in execution of money decrees prior to the receipt of such assets.
Explanation:– Priority of attachment in the case of attachment of property in the custody of court shall be determined on the
same principles as in the case of attachment of property not in the custody of court.”
9. But when it has to be stated that the revision petitioners are not entitled to rateables, the said proviso is not applicable.
10. When the amount of Rs. 3,513/- was in court deposit in the Sub-Court and when a question arises as to whether the said amount belongs to the plaintiff or the defendant therein or the decrceholder or the judgment-debtor therein then naturally it is for that court to decide as to who is entitled to the said amount, for ultimately it is that court which had to issue a cheque for the amount in deposit. Of course, in this case the amount of Rs. 3,513/- was sought to be attached by the revision petitioners. Their claim is only against R-2. If that amount belongs to R-2, the attachment is effective. But if the said amount does not belong to R-2 and if it belonged to R-1 only, then the attachment has no effect, for the revision petitioners, in whose favour the order of attachment was passed, has no claim against R-1 herein. It is manifest from the facts narrated that even long before the execution petition was filed by the revi-sion petitioners, the Sub-Court decided that the amount of Rs. 3,513 in deposit belonged to R-1 and as such the attachment had become ineffective. Of course, if the amount in deposit in the Sub-Court belonged to R-2, and if a question arises as to whether the order of attachment is valid or not, then it is only the attaching court that has the power is decide about it. But that question does not arise in this case, as the amount in deposit was held to be that of R-1 and not that of R-2. The judgment reported in Murli Tahilram v. T. Asoomal & Co. and Basanta Kumar Bhattacharjee v. Panchu Gopaldutt were dissented from by the learned single Judge in B. Thripurasundaramma v. State (AIR 1984 Andh Pra 305). But the Supreme Court in Kotak &. Co. v. State of U.P. affirmed the principle laid down in Murli Tahilram v. T. Asoomal & Co. and Basanta Kumar Bhattacharjee v. Panchu Gopaldutta. Hence by implication the decision in B. Thripurasundaramma v. State stands overruled
by the Supreme Court in Kotak & Co. v. State of U.P.
11. In view of the above discussion, we find that the lower court rightly held that the amount of Rs. 3,513/- in deposit in E.P. No. 54/85 in O.S. No. 57/83 belonged to R-1 and hence he is entitled to the same on the security being furnished as ordered on 9-12-1985. As such the revision petitioners are not entitled for the same. They are also not entitled to the rateables. Accordingly the Civil Revision Petition is dismissed. No costs.
12. Revision dismissed.