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Manora Bai Vs. Sultan Bakath Begum and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberCivil Revn. Petn. No. 489 of 1963
Judge
Reported inAIR1968AP113
ActsCode of Civil Procedure (CPC), 1908 - Sections 73 and 115 - Order 1, Rule 10 - Order 21, Rules 11, 11(2), 12, 13, 14, 17, 17(1), 17(2) and 52
AppellantManora Bai
RespondentSultan Bakath Begum and ors.
Appellant AdvocateN. Narsaiah, Adv.
Respondent AdvocateA. Raghuvir, Adv.
DispositionPetition dismissed
Excerpt:
.....of civil procedure, 1908 - revision petition filed against order of distribution of assets among decree-holders - petitioners and respondents are decree- holder - alleged by petitioner that respondent did not attach money in hands of receiver - contended respondent not entitled to distribution of assets on account of decree - section 73 provides only application of execution to be filed before assets reach attaching court - respondent complying with section 73 - held, respondent entitled to rateable distribution of assets. - - i think the preliminary objection is well founded. the order has become final in so far as keshagiri rao is concerned any order inconsistent with the finality of that order in so far as keshagiri rao is concerned will be bad in law. the revision therefore..........a decree for rs. 27,435-20 np. we are not concerned with regard to the decree amounts of the other decree-holders. it is however necessary to mention that one keshagiri rao, who had obtained & decree for rs. 6,000 against the same judgment-debtor, from the 1st additional judge, city civil court and in whose favour the order of rateable distribution is made, is not made a party to this revision petition. the four decree-holders except the 1st respondent applied in their execution petitions for the attachment of a certain amount held by the receiver appointed by the high court in c. s. no. 13 of 1958. the judgment-debtor was one of the defendants in the said suit. the amount thus attached was sent to the attaching court in the form of a cheque for rs. 16,407 on 24-7-1962. the cheque was.....
Judgment:
ORDER

1. This revision petition is directed against an order of the IVth Additional Judge, City Civil Court, Hyderabad given on 29-12-1962.

2. The essential facts are that five decree-holders obtained money decrees against one Sultan Bakath Begum from the City Civil Courts. The petitioner obtained a decree for Rs. 15,575-20 np. The 1st respondent Ama Ravamma obtained a decree for Rs. 27,435-20 nP. We are not concerned with regard to the decree amounts of the other decree-holders. It is however necessary to mention that one Keshagiri Rao, who had obtained & decree for Rs. 6,000 against the same judgment-debtor, from the 1st Additional Judge, City Civil Court and in whose favour the order of rateable distribution is made, is not made a party to this revision petition. The four decree-holders except the 1st respondent applied in their execution petitions for the attachment of a certain amount held by the receiver appointed by the High Court in C. S. No. 13 of 1958. The Judgment-debtor was one of the defendants in the said suit. The amount thus attached was sent to the attaching Court in the form of a cheque for Rs. 16,407 on 24-7-1962. The cheque was cashed on 31-7-1962 by the attaching Court.

3. While so, the 1st respondent applied for the execution of her decree in E.P. No. 17/62 on 20-7-1962. In her petition, she wanted that the amount in the hands of the receiver in C. S. No. 13 of 1958 on the file of the High Court should be attached Her petition was returned on 23rd of July, 1962 on the ground that she has not obtained permission from the High Court before which C. S. No. 18 of 1958 was pending. Without obtaining any such permission, the decree-holder re-presented the execution petition within the time permitted for re-presentation on 26-7-1962. In this application, she modified the relief which she had earlier claimed. She now stated that since the cheque has been received from the receiver in C S. No. 13 of 1958, it is not necessary to attach the money in the hands of the receiver. She therefore, apart from the prayer of rateable distribution, asked for attachment of moveable property of the judgment-debtor not in the hands of the receiver.

4. A dispute arose whether in these circumstances the 1st respondent is also entitled to her share in rateable distribution in the amounts received from the receiver. It was contended by the four decree-holders that the 1st respondent is not entitled to such amounts, firstly because the amount was sent by the High Court in order to satisfy the decrees obtained by the four decree-holders who had attached the amounts and not to satisfy the amount of the decree of the 1st respondent, and secondly the 1st respondent had not applied as is required under Section 73, C. P. C. before the assets were received by the attaching Court. The Court below negatived both these contentions and directed pari passu distribution of assets amongst all the five decree-holders through its order dated 29-12-1-1962. It is this order that is now challenged in this revision petition.

5. The same two contentions are raised before me in this revision. Before I deal with these two contentions, I must dispose of a preliminary objection raised by the learned counsel for the 1st respondent. The contention of Mr. A. Raghuveer, the learned counsel for the 1st respondent, is that Keshagiri Rao, one of the five decree-holders who was a party to an order under Section 73, C. P. C. by the lower Court, has not been made a party to this revision petition. Since he is a necessary party, the revision must fall for not impleading him. I think the preliminary objection is well founded. The order of the distribution pari passu under Section 73, C. P. C. is an order between all the five decree-holders. The order has become final in so far as Keshagiri Rao is concerned any order inconsistent with the finality of that order in so far as Keshagiri Rao is concerned will be bad in law. It is not denied that Keshagiri Rao is a necessary party to the revision. In his absence therefore it is not possible to make any effective order under Section 73, C. P. C. The revision therefore must fail on this short ground alone

6. In deference, however, to the arguments advanced before me by the learned Advocates for the parties, I would deal with those two contentions. In so far as the first contention is concerned, it no doubt truethat the attachment of an amount in the custody of a Court has to be made in accordance with Order XXI Rule 52, C. P. C. According to that rule, where the property attached is in the custody of any Court, the attachment shall be made by a notice to such Court requesting that such property may be held subject to the further orders of the Court from which the notice is issued. The first proviso to that rule enjoins that where such property is in the custody of a Court, any question of title or priority arising between the decree-holder and any other person not being the judgment-debtor, claiming to be interested in such property by virtue of any assignment, attachment or otherwise, shall be determined by such Court. It is common ground that there was no claim made by anyone of the four decree-holders before the custody Court, that is to say, the High Court, claiming title to the attached property or priority in regard to his payment. The custody Court therefore could not have decided any such question under Order XXI Rule 52. C. P. C. and in fact there is no determination of any such question by the custody Court. The custody Court merely sent the amount which was attached by the attaching Court in the four decrees obtained by other decree-holders than the 1st respondent. It is only when the amount is received by the attaching Court that It would be called upon to decide questions falling within the purview of Section 73, C. P. C. I do not therefore think there is any force in the contentions of the four decree-holders, that they alone are entitled to get this amount and not the 1st respondent who had not attached the money in the hands of the receiver For the purpose of Section 73, it is not necessary that every decree-holder should attach the property. It is enough, as will be seen later on, if he files an application for execution before the assets are actually received by the attaching Court. Section 73 does not require more than that. It was not therefore necessary for respondent No. 1 in order to be entitled to a rateable distribution under Section 73 to have attached the money in the hands of the receiver as the other decree-holders did. In spite of the tact that the four decree-holders had attached the property, the 1st respondent is entitled to a rateable distribution under Section 73 provided she satisfied the requirements of Section 73. It is obvious that the custody Court could not have decided the question of rateable distribution falling under Section 73. It is the attaching Court alone that can do it and that is what actually has been done in this case. I experience therefore no difficulty in rejecting the first contention

7. Coming then to the second contention. It is true that the cheque was received by the attaching Court on 24-7-1962. But it must be remembered that it was CASHEd only on 31-7-1962. The assets therefore shall be deemed to have been received by the Court only on M-7-1962. This view is supported by the following two decisions: Venkata Subbalah v. Adinarayana, AIR 1954 Andhra 44 and Deva Dutta and Sons v. Mitter and Sons, AIR 193d Cal 530 at p. 535.

8. Moreover, I am not impressed by the argument that E. P. No. 17/62 filed by the 1st respondent shall be deemed to have been filed only on 26-7-1962 and not on 20-7-1962. In the said E. P., it is no doubt true that the decree-holder asked for the attachment of the money in the hands of the receiver without obtaining any permission of the High Court which had appointed the receiver in C. S. No. 13 of 1958. On that ground, the E P. was returned on 23-7-1962. It was however re-presented on 26-7-1962 after necessary amendments. The question therefore is whether such a petition would be deemed to have been filed for the first time on 26-7-1962. Any answer to this question must depend upon the construction of Order 21 Rule 17 C. P. C. According to Sub-rule (2) of that rule, where an application is amended under the provisions of Sub-rule (1) it shall be deemed to have been an application in accordance with law and presented on the date when It was first presented. Assuming therefore that a defective application was presented on 20-7-1962, but when it was represented after removing the defects, such an application should be deemed under Sub-rule (2) of Rule 17, to have been presented on 20-7-1962. That apart, I do not think the return of the application itself was in accordance with law. What Rule 17 (1) says is that on receiving an application for the execution of a decree as provided by Rule 11, Sub-rule (2), the Court shall ascertain whether such of the requirements of Rules 11 to 14 as may be applicable to the case have been complied with, and, if they have not been complied with, the Court may reflect the application if the defect is not remedied within a time to be fixed by it. It will thus be plain that if the application is not in accordance with rules 11 to 14 of Order 21, it is only then that the executing Court can ask the decree-holder to remedy such defect by fixing some time within which the defect must be remedied and in case such defects are not remedied within the prescribed time, the executing Court can reject such a defective application. It will have been seen that the defect must come within the purview of anyone of the Rules 11 to 14 Admittedly Rules 12 to 14 are not attracted to the facts of the present case. It is to Rule 11 therefore that one must look to find out whether the relief claimed originally in the present execution petition was in any way contrary to Rule 11. Sub-rule (2) of Rule 11 prescribes the form of the written application for execution According to Clause (j), the mode in which the assistance of the Court is required has to be mentioned. It is clear from the relief claimed by the decree-holder that she wanted to attach trip money in the hands of the receiver. To such a case, Sub-clause (ii) of Clause (i) would apply. The mode therefore in which the assistance of the Court was sought by the petitioner is mentioned in the petition that the money should be attached n order to satisfy her decree. Sub-clause (v) of Clause (i), which is a residuary clause, would obviously not apply because a specific clause applied. In that view of the matter, the execution petition filed by the 1st respondent was perfectly in accord with Rule 11 Merely because the relief could not have been granted by the executing. Court as no permission of the High Court was obtained, it cannot be argued that the execution petition is, inconsistent with Rule 11 of Order XXI. C. P. C. It is one thing to say that the form of application is not in accordance with Rule 11 and it is quite a different thing to say that the relief claimed although in accord with Rule 11 cannot be granted by the executing Court because of certain legal objections. When the execution petition thus satisfied the requirements of Rule 11. I fail to see how it could have been returned for removal of defect under Rule 17. The order returning the execution petition therefore would, have to be ignored and it will have to be construed that the execution petition was filed validly on 20-7-1962. In any case, as stated earlier, the petition was re-presented on 26-7-1962 which according to Rule 17 (2) would be deemed to have effect from 20-7-1962 when it was first presented, and since I have held that the assets actually were received on 31-7-l962 and not on the date when the cheque was received there remains no force in the contention that since the 1st respondent had not applied before the assets were actually received by the attaching Court, she was not entitled to any pari passu distribution of the amount. The second contention also therefore is rejected.

9. As no other argument was advanced,the result is that the revision petition failsand is dismissed with costs.


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