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Ram Chandra Naik Kalia Vs. Raghunath Saran Singh Deo and anr. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1918All327; 46Ind.Cas.101
AppellantRam Chandra Naik Kalia
RespondentRaghunath Saran Singh Deo and anr.
Excerpt:
civil procedure code (act v of 1908), section 73 - rateable distribution--suit by one decree-holder for refund of moneys paid to other decree-holder before actual distribution, maintainability of--mode of distribution. - - it is quite clear as a matter of actual fact that the suit was premature, inasmuch as it was brought before the money had been paid but it is unnecessary to decide the appeal on a technical point when on the merits it must equally fail. the plaintiffs judgment-debtors only represented 3/4ths of the estate and clearly only 3/4ths of the amount recovered was liable to be distributed rateably......her co-heirs to recover rs. 97,500 due to her as dower. the other two defendants-respondents brought suits against all the heirs of farzand ali including najm-un-nissa and obtained decrees as against them for monies due from farzand ali. in all three cases the sums found due were recoverable from the assets of farzand ali which had come to the judgment-debtors by inheritance. a certain property was attached and sold in execution of the decree obtained by the defendant no. 1, and the plaintiff applied for rateable distribution, so also did defendant no. 2. the plaintiff, we may state here, is the transferee of the decree of musammat najm-un-nissa. rateable distribution was allowed only in respect to 3/4ths of the sum recovered, inasmuch as the judgment-debtors in the plaintiff's.....
Judgment:

1. This is a plaintiff's appeal. He and the two defendants-respondents are three decree-holders. One Farzand Ali died leaving a certain number of heirs of whom Musammat Najm-un-nissa was one, she being his widow. She brought a suit as against her co-heirs to recover Rs. 97,500 due to her as dower. The other two defendants-respondents brought suits against all the heirs of Farzand Ali including Najm-un-nissa and obtained decrees as against them for monies due from Farzand Ali. In all three cases the sums found due were recoverable from the assets of Farzand Ali which had come to the judgment-debtors by inheritance. A certain property was attached and sold in execution of the decree obtained by the defendant No. 1, and the plaintiff applied for rateable distribution, so also did defendant No. 2. The plaintiff, we may state here, is the transferee of the decree of Musammat Najm-un-nissa. Rateable distribution was allowed only in respect to 3/4ths of the sum recovered, inasmuch as the judgment-debtors in the plaintiff's decree represented only 3/4ths of the estate. Before the money was paid out to the other two decree-holders, plaintiff brought the present suit actually to recover the sums which he considered had been improperly awarded to the other two defendants. The Court below dismissed his suit, holding, in the first place, that it was premature having been brought before the money had actually been paid, and secondly, on the merits holding that proper rateable distribution had been made. It based its decision on the Full Bench decision in Gonesh Das Bagria v. Shiva Lakshman Bhakat 30 C. 583 : 7 C.W.N. 414 (F.B.). That is a decision which has been followed in this Court in the case of Gatti Lal v. Bir Bahadur Sahai 27 A. 168; A.W.N. (1901) 200 : 1 A.L.J. 562. The plaintiff comes here on appeal and challenges the lower Court's finding. It is quite clear as a matter of actual fact that the suit was premature, inasmuch as it was brought before the money had been paid but it is unnecessary to decide the appeal on a technical point when on the merits it must equally fail.

2. The two decisions mentioned above apply to the case, and it is quite clear that the Court below has rightly applied the principle laid down therein. The plaintiffs judgment-debtors only represented 3/4ths of the estate and clearly only 3/4ths of the amount recovered was liable to be distributed rateably. The figures of the distribution have not been challenged. In our opinion there is no force in the appeal. We, therefore, dismiss it with costs.


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