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Firm Chand Mal Rup Chand Through L. Rupchand Vs. L. Gurdial Prasad and anr. - Court Judgment

LegalCrystal Citation
Subject Property
CourtAllahabad
Decided On
Reported inAIR1939All159
AppellantFirm Chand Mal Rup Chand Through L. Rupchand
RespondentL. Gurdial Prasad and anr.
Excerpt:
- .....of the lower appellate court in favour of the plaintiff holding that the plaintiff is. entitled to rateable distribution. the facts-are that the plaintiff and defendant 1 and 1 defendant 2 all had separate decrees against defendant 3. the decree of the plaintiff, no. 155 of 1929, was granted on 22nd august 1929 and the plaintiff applied for execution on 27th august 1929 and got attachment of certain house property from the munsif of hathras on 15th november 1929. defendant 1, appellant before us, obtained a decree no. 441 of 1930 from the court of the subordinate judge of aligarh and he applied, for execution on 26th august 1930 and on 20th january 1931 the same property which had been attached by the plaintiff was put up for sale and sold for rs. 5000. the plaintiff made an application.....
Judgment:

Bennet, J.

1. This is a second appeal by the defendant first party against a decree of the lower Appellate Court in favour of the plaintiff holding that the plaintiff is. entitled to rateable distribution. The facts-are that the plaintiff and defendant 1 and 1 defendant 2 all had separate decrees against defendant 3. The decree of the plaintiff, No. 155 of 1929, was granted on 22nd August 1929 and the plaintiff applied for execution on 27th August 1929 and got attachment of certain house property from the Munsif of Hathras on 15th November 1929. Defendant 1, appellant before us, obtained a decree No. 441 of 1930 from the Court of the Subordinate Judge of Aligarh and he applied, for execution on 26th August 1930 and on 20th January 1931 the same property which had been attached by the plaintiff was put up for sale and sold for Rs. 5000. The plaintiff made an application for ratable distribution to the Subordinate Judge of Aligarh on 31st January 1931 and his application was dismissed on the April 1932. Defendant 2 made an application for rateable distribution and it was allowed and the proceeds Rs. 5000 were divided, defendant 1 receiving Rs. 4293 and defendant 2 receiving Rs. 707. The plaintiff has now brought a suit claiming Rs. 501 from defendant 1 and Rs. 107 from defendant 2. The first Court dismissed the suit and the lower Appellate Court has decreed the suit. The question turns on the interpretation of two Sections of the Civil Procedure Code, Section 63(1) and Section 73(1). The case for the appellant-defendant 1 is that to obtain rateable distribution the plaintiff should have complied strictly with the language of Section 73(1) which states 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 same judgment-debtor and have not obtained satisfaction thereof, the assets, after deducting the costs of realization, shall be ratably distributed among all such persons.

2. The plaintiff merely made an application to the Court of the Subordinate Judge of Aligarh for rateable distribution. The appellant claims that the plaintiff should have made an application to the Subordinate Judge of Aligarh for the execution of his decree, before the receipt of the assets, and if he had not obtained satisfaction by that application then he might have claimed rateable distribution from the amount which was obtained by the sale in execution of the decree by defendant 1.

3. On the other hand the plaintiff-respondent contends that this is a case which does not come under the general Section 73, Civil P.C. because that Section is a general one for applications for rateable distribution for persons who have decrees against the same judgment-debtor and that the plaintiff has a further qualification in the present case, namely that he had attached the same property in execution of his decree which had been attached by the appellant-defendant 1 in execution of the appellant's decree. The plaintiff therefore argues that he comes under the special case of Section 63(1) and that as he comes under that Section the procedure of Section 73 is not necessary for him. It is due to this distinction that there has been an apparent contradiction in a certain number of rulings which have been laid before us. When examined however from this point of view, it is clear that the rulings fall under two heads, those to which Section 63 will apply and those to which Section 63 will not apply and to which only Section 73 will apply. The only ruling directly on the point in this High Court is Sarjoo Ram Sahu v. Partap Narain : AIR1933All563 . This is a ruling of a learned Single Judge, Kisch J., and he refers to various apparently conflicting rulings and in the case before him the provisions of Section 63 would apply and he followed certain rulings which hold that in such a case the full procedure of Section 73 need not be carried out. Reference was also made to a ruling of a Bench of this Court in Mt. Deoraji Kuer v. Jadunadan Rai : AIR1931All92 . That case however was not similar to the present as it is not stated in the ruling that the same property had been attached in execution of different decrees. It was therefore not a case to which Section 63 would apply. It was a case which interpreted Section 63 and. it was held that an application in the form prescribed for applications for execution praying merely for rateable distribution of the assets to be realized mentioning that the property was already under attachment and sale on the decree of another decree-holder but not expressly praying for attachment and sale was a sufficient application for the purpose of Section 73 and entitled the applicant to rateable distribution.

4. For the appellant reference was made to Ramjas Agarwal v. Guru Charan Sen (1910) 14 C.W.N. 396. This was a ruling of a Bench of the Calcutta High Court and the case was somewhat similar because there were rival decree-holders who had attached the same property and the property was sold in execution of the decree of the higher Court, the Subordinate Judge of Paridpur. The opposite party had a decree in the Court of the Munsif of Goalando and this opposite party made two applications for rateable distribution. The Court held that neither of these applications was intended to be an application under Section 285 (which corresponds to the present Section 63) and the Court further held that even if the applications were treated as coming under Section 285 no objection was taken by the applicant to the attachment of the properties by the Faridpur Court and that only such a proceeding would come under Section 285. The Court based its reasoning partly on the fact that the words shall determine any claim thereto and any objection to the attachment thereof' in Section 285 must refer to claims or objections referred to in the preceding Sections 278 to 281. Now these Sections no longer precede Section 63, Civil P.C. of 1908, but these Sections now are reproduced in Order 21 Rules 58 to 61. Accordingly therefore the basis of the argument of the Calcutta Bench has disappeared. The Calcutta ruling was dissented from in a later ruling Girndra Nath Ray v. Kedar Nath : AIR1925Cal966 . There are other Calcutta rulings which are in favour of the respondent, namely Surendra Kumar Guha v. Jamini Kumar Guha (1936) 23 A.I.R. Cal. 391 and an earlier Calcutta ruling, Clark v. Alexander (1894) 21 Cal. 200. In the Madras High Court there arc rulings in favour of the respondent : Subramanian Chetty v. Ramaswami Chetty (1926) 13 A.I.R. Mad. 179 and Thanmull Sowcar v. Krishnaswami Reddiar (1935) 22 A.I.R. Mad. 496. The appellant relied on Nanjunda Chettair v. Nallakaruppan Chettiar : AIR1928Mad496 by a learned Single Judge, hut this ruling was specifically overruled by a Bench ruling, Ademma v. Venkata Subbayya (1933) 20 A.I.R. Mad. 627. There in one Bombay ruling in favour of the appellant, Nimbaji tulsiram v. Vadia Venkati (1892) 16 Bom. 683 (Single Judge), but there is a Bench ruling in favour of the respondent, Dhirendrarao Krishnarao v. Virbadrappa G. Hosmani (1935) 22 A.I.R. Bom. 176 In the Lahore High Court there is a ruling of a learned single Judge in favour of the respondent, Balmokand v. Ram Saran Das (1936) 23 A.I.R. Lah. 519. There is no doubt therefore that the preponderance of authority is in favour of the respondent. These cases in favour of the respondent are all cases which come under Section 63(1), Civil P.C. which is as follows:

Where property not in the custody of any Court is under attachment in execution of decrees of more Courts than one, the Court which shall receive or realize such property and shall determine any claim thereto and any objection to the attachment thereof shall be the Court of highest grade, or where there is no difference in grade between such Courts, the Court under whose decree the property was first attached.

5. We consider that the language of this Section will cover the present case as in the present case the property was attached by the plaintiff in the Court of the Munsif of Hathras and therefore the plaintiff is entitled to ask the Court of the Subordinate Judge of Aligarh that the plaintiff should receive rateable distribution of the sale of the same property which has taken place under the orders of the Court at Aligarh. We consider that the question of rateable distribution is one which will come under the words 'shall determine any claim thereto' appearing in Section 63. In our view therefore the decision of the Court below was correct arid we dismiss this second appeal with costs.


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