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Pt. Sidh Nath Tewari Vs. Tej Bahadur Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1932All411
AppellantPt. Sidh Nath Tewari
RespondentTej Bahadur Singh and ors.
Excerpt:
- - the decree-holder is not injured because every decree-holder must know perfectly well that if by his exertions assets are received by and are held by the court there is always the possibility that another decree-holder may come in and bring himself within the necessary status for being given rateable distribution and the original decree-holder has to see part of the assets obtained through his exertions pass into the hands of a rival decree-holder. having satisfied all those conditions he can then claim to come in and have a rateable distribution of assets held by the court......singh's decree and the last of 30th august 1927 being the decree of pandit sidh nath. all of the decree-holders were seeking recourse to the property of the judgment-debtor and execution proceedings were taken on 20th november 1928 by tej bahadur singh, on 1st july 1929, by sidh nath on 8th july 1930 by moti lal. the property was about to be put up for sale at the instance of tej bahadur singh when on 10th april 1930 the judgment-debtor deposited rs. 500 in order to secure the postponement of the sale. thereupon on 9th may 1930, sidh nath asked that he might be allowed to have rateable distribution of that money as between himself and tej bahadur singh. later on a date not given to us, a thousani rupees was paid by the judgment-debtor apparently to secure some further concession from.....
Judgment:

Mears, C.J.

1. On the civil revision' being opened Mr. Bankey Behari Lal referred the Court to the decision of Lachmi Dayal v. Sri Kishan Das [1905] 2 A.L.J. and also to Section 295, Civil P.C. of 1882 and contended that as there was an undoubted remedy by suit in respect of matters which Mr. Pandey sought revision, the proper practice for this Court is not to hear the revision. Mr. Pandey brought to our notice the case of Lila v. Mahange : AIR1931All632 and the observations of Sulaiman, J,, in that case. The position today with regard to revision is that there is no hard and fast rule about the matter, and when it manifestly appears to be right and convenient and proper that this Court should decide a revisional application in preference to allowing the parties to embark on long and expensive litigation, it is within the competence of the Court so to decide the revisional application. In each case it is a matter for the Judge to exercise his discretion but it is undesirable that there should be a flood of revisions or that there should be a general departure from the rule of long standing.

2. We however regard this as a case which raises in a very neat form a point of law which has not come before the Allahabad Bench since 1908 at which date the legislature made what we regard as important alterations in Section 73. The facts of the case from which this application arises are that a debtor by name Sarju Pershad Narain Singh had three decrees against him one of 14th December 1923 being Moti Lal's decree, the second of 18th August 1925 being Tej Bahadur Singh's decree and the last of 30th August 1927 being the decree of Pandit Sidh Nath. All of the decree-holders were seeking recourse to the property of the judgment-debtor and execution proceedings were taken on 20th November 1928 by Tej Bahadur Singh, on 1st July 1929, by Sidh Nath on 8th July 1930 by Moti Lal. The property was about to be put up for sale at the instance of Tej Bahadur Singh when on 10th April 1930 the judgment-debtor deposited Rs. 500 in order to secure the postponement of the sale. Thereupon on 9th May 1930, Sidh Nath asked that he might be allowed to have rateable distribution of that money as between himself and Tej Bahadur Singh. Later on a date not given to us, a thousani rupees was paid by the judgment-debtor apparently to secure some further concession from Tej Bahadur Singh but as that money was never received by the Court, Mr. Pandey raises no point about any right of Sidh Nath to participate in that sum, but he does contend that his client had put himself, by 9th May 1930, in a position in which he was entitled to demand rateable distribution from the Court. His complaint is that the Court never really considered this matter or exercised any discretion or judicial determination and that the Subordinate Judge wiped off his claim for rateable distribution on the grounds, that the sum of Es, 500 was not part and parcel of any sale proceeds, that the sum was deposited and paid by the judgment-debtor for and on account of Tej Bahadur Singh alone and that the application of 9th May 1930 was presented on a date subsequent to the deposit and payment. We must now examine each of those propositions.

3. The first was that the sum of Rupees 500 was not part and parcel of any sale proceeds. Now there is no doubt that if Mr. Maheshwar Prasad had been deciding this case in accordance with Section 295 of Act 14 of 1882 his decision would have been in conformity with the authorities of this Court. The authority which we have been specially referrad to is Gopal Dat v, Ghunni Lal [1886] 8 All. 67, but in the year 1908, as we have mentioned there came into existence the remodeled Section 73 and it is to be noticed that at this date there had been conflicting decisions in the Indian Courts. Some of the Indian Courts attributed to the words 'or otherwise' in Section 295 a much wider significance than was given to them by other Courts and therefore Section 73 was drafted with these introductory words 'where assets are held by a Court.' It has been argued before us that the assets to be held by the Court must be part and parcel of some sale proceeds. We do not agree with this construction and we think that the case of Noor Mohamed Dawood v. Bilasiram Thaltursidass [1920] 47 Cal. 515 has given the right and proper interpretation to this matter. The judgment of Eankin, J., at p. 519 and onwards gives what in our opinion is the true ground of interpretation of this section and we must give to the first line of Section 73 the plain and ordinary construction 'where assets are held by a Court.' The Court undoubtedly did receive on 10th April Rs. 500 paid by the judgment-debtor in part satisfaction of a decree and the Court held that money. That money, in our opinion, was an asset and we cannot hold that the word 'assets' is to be confined to 'assets' realized by sale or otherwise in execution of a decree. If we do, then we revert at once to the language of Section 295 which has been deliberately abandoned by the incorporation of much wider words in Section 73, Civil P.C. 1908. The second reason given by the learned Judge is that the sum was deposited and paid for the use and benefit of Tej Bahadur Singh alone. So it was in the sense that the Rs. 500 was paid as a bargain between Tej Bahadur Singh and the judgment-debtor that the judgment-debtor could buy a certain amount of time from Tej Bahadur Singh by the deposit of that money in satisfaction of his decree. The judgment-debtor is not injured because whatever happened to the Rs. 500 he would still get the time for which he bargained. The decree-holder is not injured because every decree-holder must know perfectly well that if by his exertions assets are received by and are held by the Court there is always the possibility that another decree-holder may come in and bring himself Within the necessary status for being given rateable distribution and the original decree-holder has to see part of the assets obtained through his exertions pass into the hands of a rival decree-holder. The third point that the application made on 9th May 1930 was presented on a date subsequent to the deposit and payment can only, we think, have arisen from a misreading of Section 73. Section 73 does not say that before the receipt of such assets an application must be made to the Court. The first step that is necessary in these cases is that there must be assets held by the Court. The next step is that there must be a decree-holder who has a decree for the payment of money passed against the same judgment-debtor. That decree-holder must not have obtained satisfaction and he must |have made an application to the Court for the execution of his decree before the receipt of the aforesaid assets. Having satisfied all those conditions he can then claim to come in and have a rateable distribution of assets held by the Court.

4. We agree that Sidh Nath had fulfilled all these conditions at the date when he made the application. We are of opinion that the application should have been granted and that the Judge should have exercised the jurisdiction vested in him and have made the order. We therefore set aside the decision of the Subordinate Judge and declare that in respect of the Rs. 500 deposited by the judgment-debtor in favour of Tej Bahadur Singh on 10th April 1930, Sidh Nath is entitled to rateable distribution. As it was extremely doubtful whether this revisional application was likely to be heard, we think that the proper order to make is that no costs to either party shall be given.


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