K.P. Radhakrishna Menon, J.The Union Bank of India is the revision petitioner.

2. Facts relevant and requisite to dispose of the issue arising for consideration lie in a narrow compass. The first respondent is the decree-holder and respondents 2 and 3 are the judgment-debtors in O.S. 522/81. The first respondent had obtained an attachment before judgment of the lorry belonging to the judgment-debtors. The attachment however, was raised on one E. V. John, the brother of the judgment-debtors, giving a fixed deposit receipt for a sum of Rs. 6,500/- issued by the petitioner-bank as security to the court. In execution of the decree the court, treating the bank as a garnishee, called upon the bank to deposit the amount and interest thereon, covered by the fixed deposit, in court. This order, directing the bank to deposit the amount, it is submitted on behalf of the decree-holder, was passed after rejecting the banks contention that the bank has a lien over the amount in fixed deposit. Since this order was passed without considering the above contention of the bank, according to the bank, the bank filed E.A. 781/87 seeking review of the order. In this petition the bank has stated that the bank has the right to retain this money in exercise of its general power of lien and appropriate the said money towards amounts due to it under the loan account.

3. The court below by the order under challenge has dismissed the review application.

4. Certain facts are admitted and they are : E. V. John had put money in fixed deposit on 14-11-1981. On the same day he had availed of an agricultural loan. On 16-11-1981 the fixed deposit receipt had been produced before the court as security; and accepting the said security, the order attaching the lorry had been vacated,

5. The learned counsel for the petitioner argues that under the circumstances, the bank can look to its general lien as a protection against its loss attributable to the agricultural loan transaction which it was having with E.V. John. A reference in the connection to Section 171 of the Contract Act is profitable, the counsel submits On the otherhand, it was contended on behalf of the decree-holder that at the time when the fixed deposit receipt was given as security to the court for the lifting of the attachment, there was no amount legally due from E. V. John to the bank and therefore, even assuming that the bank can avail of the bankers lien, the same can be exercised only subject to the charge created in favour of the court.

6. The question thus arising for consideration is; can the bank exercise the bankers lien in respect of the fixed deposit An effective answer to this question could be had only if we understand the relation of banker to the customer in regard to fixed deposit. The fixed deposit is one of the three bank deposits; the other two being saving deposits and current deposits. We should in this connection remember that money lodged with banks as fixed deposits stricto jure is a loan to the bank. The banker in connection with the fixed deposit, therefore is a debtor. The depositor accordingly would cease to be the owner of the money in fixed deposit. The said money becomes the money of the bank, enabling the bank to do as the bank likes, that however, with the obligation to repay the debt on maturity. (See page 411 of Pagets on Law of Banking 9th edition).

7. Money put in fixed deposit constitutes a debt in the hands of the banker and a debt cannot be a suitable subject for a lien, because a lien is a right recognised in a creditor to retain another mans property until the debt is paid (See page 412 of Pagets). Buckley J. in Halesowen Presswork and Assemblies Ltd. v. Westminster Bank Ltd. (1971) 1 QB 1 has observed thata lien postulates property of the debtor in the possession or under the control of the creditor. A creditor enjoying the lien as defined above however has no right to sell the thing or dispose it of. In other words he is only entitled to retain possession. (See Denning M. R. In Halesowens case). Applying these principles to the facts of the case, I am of the view that the bank being a debtor, in respect of the money in fixed deposit, had no right to press into service the doctrine of bankers lien and return the money in fixed deposit. A similar view has been taken by the Madras High Court in the decisions in Brahmayya and Co. v. K. P. Thangavelu Nadar AIR 1956 Mad 570 and N. Mohammed Hussain Sahib v. Chartered Bank, Madras AIR 1965 Mad 266 [LQ/MadHC/1963/353] .

8. The above position notwithstanding the counsel representing the bank argued that the bankers lien provided for u/s 171 Contract Act extends to even monies entrusted with or paid to the bank and if that be the position, it is further contended that, money in the fixed deposit can be adjusted towards the agricultural loan account, the bank has been maintaining in the name of E.V. John. This Section no doubt entitles a banker in the absence of a contract to the contrary, retain, as security for a general balance of account any goods bailed to them. This Section is one of the 24 Sections in the Contract Act governing the transactions called bailment. To attract this provision a bank should therefore establish that it is a bailee within the meaning of Section 148 Contract Act. A bailment, going by the definition, is the delivery of goods by one person to another for some purpose, upon a contract that, they shall, when the purpose is accomplished, be returned or otherwise disposed of according, to the directions of the person delivering them. It therefore follows that there will not be a bailment if the thing delivered is not to be specifically returned or accounted for. That money when once put in the fixed deposit ceases to be the property of the customer and constitutes a debt of the banker to the customer is a proposition well established. Such a transaction, namely, the transaction evidenced by a fixed deposit would not constitute bailment within the meaning of Section 171 of the Contract Act, even assuming that, money is a species of goods over which lien may be exercised as observed by the Punjab High Court while construing Section 171. (See Punjab National Bank Ltd. Vs. Satyapal Virmani,

9. This being the position in law, there is no question of the bank exercising the lien for the purpose of retaining the money in fixed deposit. With the views expressed by the learned Judges in Firm Jai Kishan Dass Jinda Ram and Others Vs. Central Bank of India Ltd., ; Punjab National Bank Ltd. Vs. Satyapal Virmani, and in Devendrakumar v. Gulabsingh AIR 1946 Nag 114 (relied on by the counsel for the bank in support of the above argument) to the contra with respect, I cannot agree. The ratio discernible from these decisions, in my view, is only this : "when moneys are held by the bank in one account and the payer in respect of these moneys owes the bank on another account, the bankers lien gives the bank a charge on all the monies of the payer in its hands, so that they may be transferred to whatever account the bank chooses, to set off or liquidate the debt". The situation highlighted in the above observation, going by the statement of law by Buckley LJ (in Halesowens case)(1971 (1)QB 1), is an accounting situation in which the existence and amount of one partys liability to the other can only be ascertained by discovering the ultimate balance of their mutual dealings. To put it differently, the banker has the right to set off one account against the other. The use of the word lien in this context is misleading. (See the observation made in this regard by Lord Denning M. R. in Halesowens case).

10. The direction given by the executing court to deposit Rs. 8,812/- made mention of in the petition E.A.878/87 treating the bank as a garnishee, in the light of the discussion above, is beyond challenge. Regarding the balance amount in the fixed deposit there is no prohibitory order from the court and therefore it is for the bank to decide as to whether the same could be adjusted towards the amounts due from E. V. John to the bank under the agricultural loan account.

The C.R.P. accordingly is dismissed. But in the circumstances no order as to costs.