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Katikala Subbayyamma Vs. Penmetsa Bangarraju and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberC.R.P. No. 748 of 1958
Judge
Reported inAIR1961AP422
ActsCode of Civil Procedure (CPC) , 1908 - Sections 73; Provincial Small Cause Courts Act, 1887 - Sections 33
AppellantKatikala Subbayyamma
RespondentPenmetsa Bangarraju and anr.
Appellant AdvocateK. Narasimham, Adv.
Respondent AdvocateK. Ranganadhachari, Adv.
Disposition Petition allowed
Excerpt:
.....claim ratable distribution under section 73 application must be filed before receipt of asset by court - responded filed application after execution of appellant decree and receipt of asset - held, respondent not entitled to ratable distribution. - - ' on a plain reading of this section, it appears to me that one of the conditions which has to be satisfied before a decree-holder can claim rateable distribution under this section is that he should have applied for execution of his decree to 'the court' before the receipt of the said assets by a court, that is, the application for execution must be pending in the court by which the assets are received. the learned counsel placed strong reliance upon the omission of the phrase 'by which such assets are held' in section 73 of the code..........court on the same day under order 21, rule 43 and section 73 of the c.p.c. praying to grant rateable distribution of .the assets realised in execution of the decree in small cause suit no. 68/56 and to attach the moveables of the judgment-debtor. e. a. 768/57 for transfer of the decree in small cause suit no. 92/56 to the original side of the sub-court, narsapur was ordered only on 18-1-58. the objection taken by the decree-holder in small cause suit no. 68/58 to the claim of the respondents for rateable, distribution is that the decree-holder in s.c.s. no. 92/56 has not applied for execution of his decree to the subordinate judge's court, narsapur on its original side. this objection was overruled by the lower court and it was held that the decree-holder in s.c.s. 92/56 is.....
Judgment:
ORDER

Chandrasekhara Sastry, J.

1. The question that arises for consideration in this case is one under Section 73 Civil P. C.The petitioner is the decree-holder in Small Cause Suit No. 68/56 on the file of the Subordinate Judge's Court, Narsapur. The respondents 1 and 2 are the legal representatives of one Penmetcha Subbaraju, who obtained a decree in Small Cause Suit No. 92/58 on the file of the Court of the Subordinate Judge, Narsapur against the same judgment-debtors.

The petitioner in this revision petition got transferred his decree in Small Cause Suit No. 68/56 to the original side of the same Court and got attached some immoveable property belonging to the judgment-debtors and brought it to sale and the sale amount was realised by that Court on its original side on 28-11-57. Meanwhile, that is on 25-11-57, the decree-holder in Small Cause Suit No. 92/56 filed E. A. No. 768/ 57 for transfer of the decree to the original side of the same court.

Along with this, he filed another E- P. 203/57 in the Subordinate Judge's Court on the same day under Order 21, Rule 43 and Section 73 of the C.P.C. praying to grant rateable distribution of .the assets realised in execution of the decree in Small Cause Suit No. 68/56 and to attach the moveables of the judgment-debtor. E. A. 768/57 for transfer of the decree in Small Cause Suit No. 92/56 to the original side of the Sub-Court, Narsapur was ordered only on 18-1-58.

The objection taken by the decree-holder in Small Cause Suit No. 68/58 to the claim of the respondents for rateable, distribution is that the decree-holder in S.C.S. No. 92/56 has not applied for execution of his decree to the Subordinate Judge's Court, Narsapur on its original side. This objection was overruled by the lower court and it was held that the decree-holder in S.C.S. 92/56 is entitled to rateable distribution under Section 73 from out of the amount realised in execution of the decree obtained by the petitioner. Hence, the decree-holder in S.C.S. No. 68/56 filed the above revision petition.

2. It is contended by Sri Narasimham, learned counsel for the petitioner that in order that the respondents be entitled to claim rateable distribution under Section 73 C.P.C. they must have applied for execution to the Court on the original side before the assets are realised. In this case, the decree in S.C.S. No. 68/56' was not transferred to the original side of the Subordinate Judge's Court, Narsapur before the receipt of the assets and therefore E. P. No. 203/57 for rateable distribution and for attachment of moveables was not maintainable. He relied upon a decision of Happell J. in Srinivasa Mudaliar v. Ramudu Naidu, 1943-1 Mad LJ 57: (AIR 1943 Mad 262) which followed an earlier decision in Chella Narasiah v. Sontan Obbayya, 25 Mad LJ 601.

3. The relevant portion of Section 73, Clause (1) C.P.C. is as follows:

'Where assets are held by a Court and more persons than one have, before the receipt of such assets, made application to the Court for the execution of decrees for the payment of money passed against the judgment-debtor and have not obtained satisfaction thereof, the assets, after deducting the costs of realisation, shall be rateably distributed among all such persons.'

On a plain reading of this Section, it appears to me that one of the conditions which has to be satisfied before a decree-holder can claim rateable distribution under this Section is that he should have applied for execution of his decree to 'the Court' before the receipt of the said assets by a Court, that is, the application for execution must be pending in the Court by which the assets are received.

In the present case, though the two decrees were passed by the same Court, i.e., the Subordinate Judge's Court, Narsapur in the exercise of small cause jurisdiction, the assets were realised by that court only on its original side. The decree in small cause suit No. 92/56 was not transferred to the original side of that court before the receipt of the assets, though E. P. No. 203/57 was filed on 25-11-57 itself. Section S3 of the Provincial Small Cause Courts Act (IX of 1887) is as follows:

'A Court invested with the jurisdiction of a Court of Small Causes with respect to the exercise of that jurisdiction, and the same Court with respect to the exercise of its jurisdiction in suits of a civil nature which are not cognizable by a court of Small Causes, shall, for the purpose of this Act and the Code of Civil Procedure, be deemed to be different Courts.'

It follows that the Subordinate Judge's Court, Narsapur which executed the decree in Small Cause Suit No. 68/56 on its original side and realised the assets is a Court different from the Subordinate Judge's Court, Narsapur, which passed the decree in Small Cause Suit No. 92/55 exercising jurisdiction of a Court of Small Causes. Thus it is clear that the decree-holder in Small Cause Suit No. 92/56 has not applied for execution to the Court of the Subordinate Judge, Narsapur exercising original jurisdiction which realised the assets, as required by Section 73 of the Civil Procedure Code,

Therefore, the decree-holder in Small Cause Suit No. 92/56 is not entitled to claim rateable distribution from out of the amount realised in execution of the decree in Small Cause Suit No. 68/56. I am supported in this view by the decision in 1943-1 Mad LJ 57; (AIR 1943 Mad 262) and relied upon by the learned counsel for the petitioner,

Tbere, it is held that where a small cause decree had been transferred for execution to the original side of the same court, as execution involved the sale of immoveable property, which can only be ordered by a Court other than a Court of Small Causes, the assets received by reason of such sale must be regarded as having been received on the original side of the Court and that the decree-holder in small cause decree of the same court is not entitled to claim rateable distribution unless he had applied for execution by the transfer of his decree to its original side. Happell, J. referred to an earlier decision in 25 Mad LJ 601 to the same effect.

4. It is contended by the learned counsel for the respondent that it is not necessary that applications for execution by all the other decree-holders claiming rateable distribution of the assets realised must be pending in the Court which realised the assets. In support of this, he pointed Out the difference in the language between Section 73 of the Civil Procedure Code, 1908 and the corresponding Section 295 C.P.C. of 1882.

Under Section 295, a decree-holder claiming rateable distribution must have applied to the Court 'by which such assets are held' for execution of his decree whereas under Section 73, he has to make an application to 'the Court' for execution of his decree. The learned counsel placed strong reliance upon the omission of the phrase 'by which such assets are held' in Section 73 of the Code of Civil Procedure, 1908. Though there is some force in this contention, I am unable to accept it. Section 73 begins with the phrase 'where assets are held by a Court and more persons than one have, before the receipt of such assets, made application to 'the Court' for execution'. In my opinion, the expression 'the Court' refers to the Court which held the assets referred to in the beginning of the Section. The omission of the phrase 'by which such assets are held' in Section 73, in my opinion, does not make any difference.

In order to entitle the decree-holders of (different decrees for money against the same judgment-debtor to claim rateable distribution under Section 73, they must have applied for execution of their respective decrees before the receipt of such assets to the Court which, received the assets. Otherwise, they cannot claim rateable distribution under that Section.

5. In this view, the revision petition is allowed and E.P. No. 203/57 in Small Cause Suit No. 92/56 is dismissed. Under the circumstances, I order that the parties do bear their own costs here and in the lower court.


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