1. This case involves a somewhat difficult question of law arising under Sections 63 and 73 of the Civil Procedure Code.
2. The appellants are two decree-holders in darkhasts Nos. 281 of 1925 and 282 of 1925 in the Muddebihal Court. Darkhast No. 281 of 1925 was filed to recover Rs. 4,169-12 against respondent No. 2, the judgment-debtor. On November 18, 1926, one survey number of the respondent was sold for Rs. 8.200 out of which Rs. 800 were paid on November 19, 192b, and Rs. 2,400 were paid on December 8, 1926. The other darkhast No. 282 was filed to recover Rs. 9,609. On November 17, 1926, the decree-holder applied to set off' the purchase-money against his decretal amount, and in execution all the lands in Bhaugargund were sold for Rs. 6,100. He was allowed to set off the whole of the decretal amount against the purchase-money, and paid one-fourth of the balance of the purchase-money on November 18, 1926, and three-fourths of the balance on December 3, 1926.
3. Respondent No. 1 Gurusangaya, an assignee of a decree in suit No. 78 of 1921 in the Court of the First Class Subordinate Judge of Bijapur, filed darkhast No. 439 of 1926 in the Court of the First Class Subordinate Judge to recover Rs. 11,951 by attachment and sale, and got all the properties belonging to the judgment-debtor attached on November 16, 1926. On November 27 he applied to the First Class Subordinate Judge to call for the proceedings in darkhasts Nos. 281 of 1925 and 282 of 1925, and the money in the Muddebihal Court for rateable distribution. On December 4, the Mamlatdar was informed of the order passed on the application. On February 25, 1927, the proceedings were received in Bijapur and the assets, viz., Rs. 3,200 in darkhast No. 281 and the balance of Rs. 2,491 in darkhast No. 282 were also received on that day.
4. On November 27, 1926, respondent No. 1 also prayed that the decree-holder in darkhast No. 282 who had been allowed to set off his decretal amount of the purchase-money should be asked to deposit the whole amount in Court. The learned Subordinate Judge decided in favour of respondent No. 1 and directed the decree-holder Basappa in darkhast No. 282 of 1925 to deposit the entire purchase-money in Court on the ground that otherwise the provisions of Section 73 would be rendered nugatory. The decree-holders in darkhasts Nos. 281 and 282 have appealed to this Court.
5. The first question that arises in this appeal is whether an appeal is competent. An order under Section 73 of the Civil Procedure Code determining a question of rateable distribution as between rival decree-holders in which the judgment-debtor has no interest does not fall under Section 47 of the Civil Procedure Code and no appeal would lie from such an order. See Balmer Lawrie & Co. v. Jadunath Banerjee ILR (1914) Cal. 1 in which the case of Soratji Coovarji v. Kala Raghunath ILR (1911) 36 Bom. 156, 13 Bom. L.R. 1193 has been distinguished. The same view was taken by this Court in Navaj Bhavdu v. Totaram (1930) 33 Bom. L.R. 503. An attempt was made by the appellant's counsel to invoke the provisions of Section 47 of the Civil Procedure Code by urging that the assignment of the decree in favour of the respondent Gurusangaya was a benami transaction on behalf of the judgment-debtor. No issue was raised on the point in the lower Court and the point is not taken in the memorandum of appeal with sufficient clearness. It is, therefore, unnecessary to consider whether, if such a point had been raised, it could be dealt with by the executing Court under Section 73 of the Civil Procedure Code in view of the full bench decision in Dattatraya Govindseth v. Purshottam ILR (1921) 46 Bom. 635, 24 Bom. L.R. 1. It appears clear that the question in the present case is a question relating to rateable distribution between rival decree-holders in which the judgment-debtor is not interested and therefore an appeal would not lie.
6. The second question is whether the appeal can be allowed to be turned into a revisional application and whether this is a fit case for revision. It is urged on behalf of the appellants that at least so far as the order calling upon the decree-holder in darkhast No, 282 of 1925 to pay into Court the whole amount of the purchase-money, viz., Rs. 6,100, in other words to refund the decretal amount allowed to be set off by the Muddebihal Court is without jurisdiction. It is further urged that respondent No. 1 was not entitled to rateable distribution under Section 73 of the Civil Procedure Code, and reliance is placed on the decision in the case in Nimbaji Tulsiram v. Vadia Venkati ILR (1892) 16 Bom. 683. It appears, however, from the recent decisions in Nilkanta Bai v. Gosto Behari Chatterjee ILR (1917) Cal. 64 and Deekappa Mallappa v. Chanbamppa Rachappa ILR (1925) 49 Bom. 655, 27 Bom. I.R. 917 that though Sections 63 and 73 of the Civil Procedure Code would not apply at the initial stage when the application for execution was made by respondent No. 1 to the Bijapur Court, yet those sections would apply when the Bijapur Court, as the Court of higher grade, sent for the assets from the Muddebihal Court and such assets were held by that Court. At page 661 Shah J. observed as follows:--
The present appellant could not apply to the Hubli Court for rateable distribution, and it the contention of the present opponents were to prevail, he would lose entirely the fruits of his attachment. That cannot be a correct exposition of law which should prevail.
7. Though the proper procedure, suggested in the former case and the previous decision of this Court in Patel Naranji Morarji v. Haridas Navalram ILR (1893) 48 Bom. 458, is to apply to the District Court for the transfer of the sale-proceeds to the Court of higher grade, it was held by the later decision of this Court in Deekappa's case that it is competent to the Court of the higher grade to send for the proceeds from the Court of inferior grade for rateable distribution.
8. It was, therefore, held in Deekappa's case that the sale-proceeds along with the darkhast pending in the Court of inferior jurisdiction for rateable distribution should be transferred to the Court of superior grade, and the sale-proceeds should be ratably distributed by the Court of superior grade among the decree-holders who had qualified themselves under Section 73 of the Civil Procedure Code, The cases cited on behalf of the respondents, viz., Kwai Tong Kee v. Lim Chaung Ghee ILR (1928) Ran. 131 and Narasimhachariar v. Krishnamachariar : AIR1914Mad454 , do not apply to the facts of the present case, for they are really the converse cases to the present one. In those cases the Court of the superior grade having realised the assets, was in possession of the assets, and it was held that the decree-holders of the inferior Court were entitled to rateable distribution under Sections 63 and 73 of the Civil Procedure Code. There is a change of phraseology in the present Section 73 of the Civil Procedure Code. Whereas under the old Section 295 of the Civil Procedure Code it was necessary that the assets should have been realized by sale or otherwise in execution of a decree, and more than one person applied before the realization to the Court by which such assets were held, it is sufficient under the present Section 73 that the assets are held by the Court, and more than one person has before the receipt of such assets made application to the Court. Under Section 63 of the Code the Court of the higher grade can ratably distribute the assets either after it has realized the assets in execution or has actually received them after calling for them from the Court of the inferior grade. See Godavaribai v. Deekappa (1926) 29 Bom. L.R. 319. Having regard to the decision in Deekappa Mallappa v. Chanbasappa Rachappa ILR (1925) 49 Bom. 655, 27 Bom. L.R. 917, we think that the lower Court was justified in sending for the assets from Muddebihal Court for the purpose of rateable distribution.
9. The next question is whether the sale and the permission given to the decree-holder to set off the decretal amount against the purchase-money in darkhast No. 282 of 1925 are proceedings within the meaning of Clause (2), Section 63. There is no doubt that a sale would be valid, and could not be invalidated by anything contained in Section 63 of the Civil Procedure Code. This was also the view taken by this Court prior to the enactment of Sub-Section (2) of Section 63 of the Civil Procedure Code in the cases of Turmuklal Harkisanrai v. Kalyandas Khushal ILR (1894) 19 Bom.127 and Patel Naranji Morarji v. Haridas Navalram ILR (1893) 18 Bom. 458.
10. The permission to set off the decretal amount against the purchase-money is subject to the provisions of Section 73 of the Civil Procedure Code according to Order XXI, Rule 72, Clause (2). If respondent No. 1 had got his decree transferred to the Muddebihal Court in time he might have been entitled to a rateable distribution along with the decree-holders in darkhasts Nos. 281 and 282 of 1925 according to the provisions of Order XXI, Rule 72, Clause (2). Even though permission had been given to the decree-holder in darkhast No. 282 of 1925 to set off his decretal amount against the purchase-money he might have been compelled to deposit the whole amount according to the decisions in the cases of Shrinivas v. Radhabai and Manjapa ILR (1882) 6 Bom. 570 and Madden v. Chappani ILR (1887) Mad. 356, and the express provision of Order XXI, Rule 72, Clause (2). But in the present case the question arises whether the sale must not be accepted as a whole together with the permission given to the decree-holder in darkhast No. 282 of 1925 to set off the decretal amount against the purchase money. We think that the auction sale together with the permission given to the decree-holder in darkhast No. 282 of 1925 to set off the decretal amount against the purchase-money is a proceeding within the meaning of Clause (2) of Section 63 which lays down that 'nothing in this section shall be deemed to invalidate any proceeding taken by a Court executing one of such decrees.' The word 'proceeding' is wide enough to include not only the sale but also the order allowing the decree-holder to set off the decretal amount against the purchase-money.
11. The decree-holder in darkhast No, 282 of 1925 purchased with the permission of the Court under Sub-section (7) of Order XXI, Rule 72, and the Court passed an order allowing the decree-holder to set off the decretal amount against the purchase-money, and the Court was bound to enter up satisfaction of the decree under Sub-section (2) of Order XXI, Rule 72. It would, therefore, follow that the order of the learned First Class Subordinate Judge calling upon Basappa the decree-holder in darkhast No. 282 of 1925 to refund the decretal amount which was ordered to be set off against the purchase-money was erroneous. We think that the decree in darkhast No. 282 of 1925 must be considered to have been satisfied, and the only assets available for distribution under Sections 63 and 73 of the Civil Procedure Code among the persons entitled to rateable distribution are Rs. 3,200, the assets realised in darkhast No. 281 of 1925, and the excess amount of Rs. 2,491 realised in darkhast No. 282 of 1925. We think that the lower Court, in ordering the decree-holder in darkhast No, 282 of 1925 to refund the decretal amount which was ordered to be set off against the purchase-money, exercised a jurisdiction which was not vested in it by law in view of the provisions of Sub-section (2) of Section 63 of the Civil Procedure Code. We would, therefore, set aside that portion of his order, and confirm the rest of his order.
12. Costs will be taxed as in revision petition. Appellant No. 1 should pay the costs of respondent No. 1 and appellant No. 2 should get his costs from respondent No. 1.
1. The first question that arises is whether an appeal lies and that depends on the question whether the judgment-debtor is or is not affected by the dispute between the rival decree-holders. This was pointed out in our decision in Navaj Bhavdu v. Totaram (1930) 33 Bom. L.R. 503 in which we referred to Balmer Lawrie & Co. v. Jadunath Banerjee ILR (1914) Cal. 1 and other cases. In order to show that the judgment-debtor is affected by the proceedings before the First Class Subordinate Judge in this case Mr. Jahagirdar appearing for the appellants decree-holders in darkhasts Nos. 281 and 282 of 1925 has put forward the contention that the assignment of the decree in favour of Gurusangaya respondent No. 1 was a benami transaction for the benefit of the judgment-debtor. The contention to which the appellants mainly devoted their efforts in the trial Court was that the decree which was assigned to Gurusangaya had been satisfied. It was alleged in the written statements that the assignment was a benami transaction but no issue was raised or apparently asked for on that point, nor is the allegation that the assignment was benami definitely alleged in the memo of appeal. All that has been stated there in that connection is in para 12, 'The lower Court has erred in ignoring the relationship between the assignee of the decree and the judgment-debtor. It should have been held that the former is colluding with the latter,' and in para 13, 'The lower Court has ignored the admission of the assignee that he purchased the decree with a view to save the property of the judgment-debtor.' It seems extremely doubtful whether any questions of this kind can properly arise in a proceeding under Section 73. I may refer in that connection to the full bench decision of this Court in Dattatraya Govindseth v. Purshottam ILR (1921) 46 Bom. 635, 24 Bom. L.R. 1. But in any case we cannot allow what is practically a new case to be made out in order to give a right of appeal. I agree with my learned brother that there is no right of appeal, although it is a case in which it is open to us to interfere by way of revision.
2. The procedure followed by the First Class Subordinate Judge in calling for the darkhast proceedings from the Muddebihal Court and for the proceeds of the sales held by that Court appears to be correct in view of the decision of this Court in Deekappa Mallappa v. Chanbasappa Rachappa ILR (1925) 49 Bom. 655, 27 Bom. L.R. 917, which followed Nilkanta Rai v. Gosto Behari Chatterjee ILR(1914) Cal. 64. These cases also appear to show that the learned Subordinate Judge was right in his view that the respondent Gurusangaya is entitled to rateable distribution under Section 73. But it is clear that the Court can only ratably distribute the assets, and the assets do not so far include the amount of the decree in darkhast No. 282 of 1925 which the purchaser Basappa was allowed by the Muddebihal Court to set off against the purchase-price. The question is whether the First Class, Subordinate Judge has any authority to set aside the order for set-off made by the Muddebihal Court and to order Basappa to pay the amount of the set-off into Court in order that it may become assets held by the Court and available for rateable distribution. I entirely agree with my learned brother that there is nothing in the Code which appears to give this authority. We have not been referred to any case which deals either directly or at all conclusively with this particular point. In Deekappa Mallappa v. Chanbasappa Rachappa there was no question of a set-off, nor was there in Nilkanta Rai v. Gosto Behari Chatterjee, Clause (2) of Section 62 is a new provision. It is very wide in its terms and I can see no reason why the words 'any proceedings' in that clause should not include an order made under Order XXI, Rule 72, for set-off, that order for set-off having been a perfectly valid order in the circumstances in which it was made. It is undisputed that the sales effected by the Muddebihal Court are valid and cannot be set aside, and that was held to be so by the High Court of Bombay even before Clause (2) of Section 63 was enacted. That clause provides that 'Nothing in this section shall be deemed to invalidate any proceeding taken by a Court executing one of such decrees'. I can see no reason to hold that 'any proceeding' means only the sale and does not include orders passed by the Court in connection with the sale. The First Class Subordinate Judge's order directing Basappa to deposit this money in Court was, therefore, made without jurisdiction and must be set aside. In other respects also I agree with my learned brother that this appeal even when treated as a revision application must fail.