Abdur Rahim, J.
1. The appellant sought to obtain a refund of the amount deposited by him under orders of the lower appellate court, which directed that sale of the properly to which he laid claim in execution of a decree for arrears of maintenance obtained by the respondent against the second defendant in the suit should be stayed on his making the deposit. The appellant was the first defendant in the suit but there was no decree against him. He, however, purchased the property pending suit, and on the strength of that purchase objected to the attachment and it was in appeal from the order disallowing the objection that the amount which the appellant seeks to withdraw from court was deposited and execution stayed. The order of the court executing the decree was upheld and execution was allowed to proceed. When the property was ordered to be sold the appellant again objected and it was ultimately decided by the lower appellate court that a moiety of the property could be sold in execution of the decree for costs, but not in execution of the decree for maintenance. Under the circumstances the learned District Judge has held that the appellant cannot obtain a refund of the deposit and the reason for his so holding, as we understand the judgment, is that the deposit must be taken to have been made a condition that he would be entitled to withdraw the deposit if he succeeded in the appeal in which the stay was granted. He would take no notice of the result of the subsequent appeal from the order directing sale of the property. I think this is placing too narrow a construction on Section 545 proviso (c), of the Code of 1882, corresponding to Order XII, Rule 5, proviso (c), of the new Code. What the section says is that security is to be given by the applicant for the due performance of such decree or order as may ultimately be binding on him. Here the appellant's objection in the first instance was disallowed on the ground that it was premature. In his objection for the second time he succeeded to this extent: that it was held that the property could be sold only in execution of the decree for costs. The decree-holder is, moreover, entitled to say that the entire money in deposit shall remain security for the due performance of the decree for costs. But he cannot say that he is going to sue for a decree for sale of the attached property under the provisions of the Transfer of Property Act and therefore the money must remain in court until he has obtained such decree. If such a suit be instituted that will be a separate proceeding Proviso (c) of Section 545 of the Civil Procedure, Code of 1882 cannot be said to contemplate a decree or order in a separate proceeding to be instituted in the future. It will be open, therefore, to the appellant to withdraw the amount in deposit by satisfying the decree for costs. This appeal, however, fails in as much as the appellant did not offer to pay up the decree for costs, in execution of which his property is under attachment. The appeal is therefore dismissed, but in the circumstances each party will bear his own costs.
Spencer, J.
2. The facts are stated in the lower court's judgment A preliminary objection has been taken as to jurisdiction. The deposit was made under Section 545 of the Civil Procedure Code of 1882 (corresponding to Order XII, Rule 5, of the new Code) under orders of the appellate court as an appeal was pending against an order passed in execution. Under the new Rule 8 of Order XII the powers of courts under rr. 5 and 6 extend to cases where an appeal is preferred from an order in execution. The Code contains no distinct provision for refund of amounts deposited as security. Courts deal with them under their general powers (Section. 151 of the present Code). The appellant might have applied in the first instance under Section 546 [last part corresponding to Order XII, Rule 6(2)] for the stay of the sale of the immoveable property in which he had an interest by his purchase. Looking to the provisions of Section 583 (corresponding to Section 144 of the new Code) I am not prepared to say that the appellant had no Ioncus standi in the District munsif's Court to apply for the return of his money. This objection too should have been taken earlier.
3. On the merits, I think the District Judge was right in refusing to allow the deposit to be withdrawn so far as it represented costs and this was a sufficient ground for dismissing his petition. If the appellant had applied to withdraw the amount deposited by him after deducting the respondent's costs, the application might have been allowed. As he applied for the return of the whole amount, his application was rightly rejected in both courts. So far as the deposit represented the maintenance amount, I agree with the view taken by my learned brother whose judgment I have had the opportunity of perusing. This appeal must be dismissed with the remark that if the appellant takes the step of making a fresh application, the lower courts will consider the above remarks in dealing with it. Each party will bear their own costs.