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Venilal Rangildas Vs. Gandabhai Bhagwandas - Court Judgment

LegalCrystal Citation
SubjectCivil;Commercial
CourtMumbai High Court
Decided On
Case NumberCivil Revn. Appln. No. 990 of 1950
Judge
Reported inAIR1952Bom222; (1952)54BOMLR72; ILR1952Bom502
ActsCode of Civil Procedure (CPC), 1908 - Sections 73 and 73(1) - Order 21, Rule 52
AppellantVenilal Rangildas
RespondentGandabhai Bhagwandas
Appellant AdvocateT.N. Walawalkar, Adv.
Respondent AdvocateA.D. Desai, Adv.
Excerpt:
.....received by the executing court when the attachment was levied on january 24, 1939, or whether the fund was received by the executing court when the amount was actually transmitted to the executing court in 1946 :--;that the amount was only received in 1946 by the executing court, and, therefore, the opponent was entitled to rateable distribution.;narsingh das v. gulab rai [1935] a. i. r. pat. 201, distinguished. dattatraya v. pundlik (1920) 22 bom. l. r. 1001, and galstaun v. woomes chandra bannerjee (1916) i. l. r. 44 cal. 789, referred to. - - i fail to see what analogy there is between that ease and the case before me. 103 of 1940 for a declaration that the fund lying in the magistrate's court was assigned to him, and in that suit the court hold that the assignment was good except..........determine on this application is whether for the purposes of section 73 it could be said that this fund was received by the executing court when the attachment was levied on 24-1-1939, or whether the fund was received by the executing court when the amount was actually transmitted to the executing court in 1946. if the fund can be considered to have been received on 24-1-1939, then the opponent is not entitled to rateable distribution. if, on the other hand, it could be said, that the fund was only received in 1946, then the opponent is entitled to rateable distribution. the lower court held that the opponent was entitled to rateable distribution, and it is from that order that this revision application is preferred.[2] now, the effect of levying an attachment under order 21, rule 52, is.....
Judgment:
ORDER

[1] This revision application raises a question of rateable distribution under Section 73, Civil P. C., and although the facts are complicated, the necessary and essential facts for the determination of this question are very simple. The petitioner obtained a money decree against his judgment-debtor and in execution of that decree he attached under Order 21, Rule 52, a fund of Rs. 3,516 belonging to the judgment-debtor and lying deposited in the Court of the City Magistrate, Surat, This fund continued to remain in the City Magistrate's Court 'and was ultimately Bent to the executing Court in 1946. The opponent made an application for attachment under his decree prior to this fund being received by the executing Court in 1946, and the only question that I have to determine on this application is whether for the purposes of Section 73 it could be said that this fund was received by the executing Court when the attachment was levied on 24-1-1939, or whether the fund was received by the executing Court when the amount was actually transmitted to the executing Court in 1946. If the fund can be considered to have been received on 24-1-1939, then the opponent is not entitled to rateable distribution. If, on the other hand, it could be said, that the fund was only received in 1946, then the opponent is entitled to rateable distribution. The lower Court held that the opponent was entitled to rateable distribution, and it is from that order that this revision application is preferred.

[2] Now, the effect of levying an attachment under Order 21, Rule 52, is to inform the Court or officer that the property attached must be held by the Court or officer subject to the further orders of the Court. The property attached continues to remain with the officer or the Court, and the property is not at the disposal of the executing Court. Further orders have to be made by the Court before the property is at the disposal of the executing Court and before the executing Court can make any orders with regard to the disposal of that property. Therefore, the only effect of the attachment under Order 21, Rule 52, is to prevent the Court or officer who holds the property of the judgment-debtor from dealing with that property. Apart from authority, it is clear that a mere attachment without more would not result in the property or the assets being received by the executing Court within the meaning of Section 73.

[3] Mr. Walawalkar has relied on three authorities in support of his Submission that the attachment under Order 21, Rule 52 does amount to a receipt of assets for the purpose of Section 73. The first is Narsingh Das v. Gulab Rai A.I.R.1935 pat. 201. In that ease, the judgment-debtor had a sum of money in Court to his credit, There was an application for attachment of this money. Then there was another application at a later date and the later attaching creditor contended that as there was no book entry transferring the money to the credit of any execution he was entitled to rateable distribution under Section 73. This contention was rejected and it was held that the actual receipt took place when the moneys were attached by the Court. This case does not help Mr. Walawalkar because here the moneys were lying in the same Court, and as soon as the moneys were attached. It was naturally held that the moneys were received by the Court. There was no question here of money being received from any other Court or any other officer.

Under these circumstances it is easy to understand the decision of the Patna High Court that the actual receipt took place by reason of the attachment. The other case relied upon is a decision of this Courb in Dattatraya v. Pundlik 22 Bom. L.R. 1001. There the Court was considering the case of execution being transferred to the Collector under the Civil Procedure Code and the sale proceeds being realised by the Collector by sale of the property, and the Court held that the sale proceeds must be deemed to have been received when the Collector sells the property and realises the full sale proceeds. It is not necessary that the Collector should transfer the sale proceeds to the executing Court. I fail to see what analogy there is between that ease and the case before me. As Sir Norman 'Macleod C. J., points out at p. 1003 :

'... There is no reason why, when the Court is given powers by Statute to appoint the Collector as its officer to execute the decree, it may not be said that the Collector is the officer of the Court with certain delegated powers, for instance, he is empowered to confirm the sale although he has no power to set aside the sale.'

Therefore, the ratio decidendi of this case is that the Collector when he executes the decree does it as the officer of the executing Court, and when he receives the sale proceeds as the officer, he is receiving it on behalf of the executing Court. Reliance is also placed on a decision of the Calcutta High Court in J. C. Galstaun v. Woomes Chandra 44 Cal. 789. In that case Mookerjee and Cuming JJ,, held that the point at time to be determined under Section 73, Civil P. C., was when the purchase money has been actually paid by the purchasers. It was immaterial whether the purchase money has been actually paid into the treasury or into the hands of a person employed by the Court to hold the same. Therefore, here also we have a case where the Court appoints an officer to hold the sale and the purchase money is received by the officer. The officer is acting on behalf of the Court and receives the money on behalf of the Court.

[4] Now, applying these principles to the facts before roe, it cannot possibly be stated that the Resident Magistrate, Surat, was an officer of the executing Court or that he had received any money on behalf of the executing Court or that he held the moneys at the disposal of the executing Court as the agent or the delegate of the executing Court. The only result of the attachment was, as I have pointed out, that he was prevented from dealing with the funds or parting with the funds and he had to keep the funds until further orders of the executing Court, Therefore, in my opinion, the learned Judge below was right in holding that the opponent is entitled to rateable distribution.

[5] The second point urged by Mr. Walawalkar is extremely ingenious, but when one analyses it there does not seem to be much substance in that point. Now, what happened ma that a suit was filed by the opponent being suit No. 103 of 1940 for a declaration that the fund lying in the Magistrate's Court was assigned to him, and in that suit the Court hold that the assignment was good except against the petitioner. Therefore, the Court came to the conclusion that there was a valid assignment as between the judgment debtor and the opponent, but, that assignment was not binding upon the petitioncr. Mr. Walawalkar's contention is that if the assignment was a valid assignment, then qua the judgment-debtor the fund belongs to the opponent and therefore he cannot attach something which belongs to himself and does not belong to the judgment-debtor. Apart from its ingenuity there is really no substance in this contention. Mr. Walawalkar wants to proceed against this fund on the basis that the fund belongs to the judgment debtor and he wants to satisfy his decree out of this fund, but when the opponent wants to exercise the same right Mr. Walawalkar wants to turn against him and say that the fund does not belong to the judgment, debtor but it belongs to him and therefore he cannot attach this fund.

It is clear that all that the decree of the Court in suit No. 103 of 1940 meant was that the rights of the petitioner under the attachment were saved and he could establish his right to the fund irrespective of the assignment made by the petitioner in favour of the opponent. But if the petitioner could establish his rights under the attachment, there was nothing to prevent the opponent also to establish his rights against the petitioner in execution of his own decree. The opponent is not going against the judgment debtor because as far as the judgment-debtor is concerned he is entitled to the whole fund. He is only going against the petitioner who claims to be entitled to the whole fund by reason of his decree. To him the opponent's answer is 'I have also applied for execution and I am entitled to rateable distribution along with you under Section 73.' Therefore, the claim of the opponent is less than what he would be entitled to under the decree in suit No. 103 of 1940. Therefore, it is difficult to see how the opponent can be prevented from making a losser claim than what he would be entitled to under the decree in suit No. 103 of 1940.

[6] The result, therefore, is that the applicationfails. Rule discharged with costs.

[7] Rule discharged.


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