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Sarjoo Ram Sahu Vs. Partap NaraIn and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1933All563
AppellantSarjoo Ram Sahu
RespondentPartap NaraIn and ors.
Cases Referred and Ramjash Agarwala v. Guru Charan Sen
Excerpt:
- - lim chaung ghee air 1928 rang 157, were decided by a bench of two judges, thus the weight of authority appears to be distinctly in favour of the opposite parties......applications directed against an order of the subordinate judge of basti, allowing ' the opposite parties rateable distribution. the applicant sarju ram sahu had obtained a decree against his judgment-debtor in the court of the subordinate judge. on 7th february 1930, he attached certain property belonging to the judgment-debtor and this property was eventually sold and the proceeds deposited in the subordinate judge's court. the opposite parties had also obtained decrees against the same judgment-debtor in the court of the munsif and had attached the same property on 15th february 1930. as under section 63, civil p.c., when property has been attached in execution of decrees of several courts the property must be realised by the court of the highest grade, the decree-holders in the.....
Judgment:
ORDER

Kisch, J.

1. These are decree-holder 5 applications directed against an order of the Subordinate Judge of Basti, allowing ' the opposite parties rateable distribution. The applicant Sarju Ram Sahu had obtained a decree against his judgment-debtor in the Court of the Subordinate Judge. On 7th February 1930, he attached certain property belonging to the judgment-debtor and this property was eventually sold and the proceeds deposited in the Subordinate Judge's Court. The opposite parties had also obtained decrees against the same judgment-debtor in the Court of the Munsif and had attached the same property on 15th February 1930. As under Section 63, Civil P.C., when property has been attached in execution of decrees of several Courts the property must be realised by the Court of the highest grade, the decree-holders in the Munsif's Court applied to the Subordinate Judge's Court that they be given a rateable share out of the sale proceeds of the property attached by them. They did not get their decrees transferred to the Court of the Subordinate Judge, nor did they make any formal application for execution in that Court. The applicant contested the right of the opposite parties to rateable distribution on the ground that it was necessary for them to apply for execution in the Subordinate Judge's Court before they could be allowed rateable distribution under Section 73, Civil P.C. On the other hand, the opposite parties contended that it was sufficient in the circumstances for them to make an application to the Subordinate Judge's Court to share in the proceeds of the attached property. The learned Subordinate Judge considered a number of authorities cited before him in support of the contentions of the parties. He noted that there was no reported case of this High Court on the point and that certain other High Courts that have had occasion to consider the question have taken divergent views. He preferred to follow the authorities cited on behalf of the opposite parties which appeared to him to be in accordance with the dictates of equity. He accordingly allowed rateable distribution to the opposite parties.

2. In this Court the learned Counsel for the applicant has contended that, unless the decree is transferred to the Court in which the assets are realised and unless there is an application for execution of the decree in that Court, no rateable distribution can be allowed in favour of a decree-holder who has obtained a decree against the same judgment-debtor and attached the same property in a Court of lower grade. He relies on the authorities cited in the judgment of the Court below in support of this proposition. The Madras High Court has taken the view that the decree obtained in the Court of lower grade must be transferred to the Court in which the assets of the judgment-debtor are 'realised and that the decree-holder must make an application for execution in that Court, before he can obtain a rateable share in such assets under Section 73, Civil P.C. Chella Narasiah v. Sonatan Obbayya (1913) 21 IC 869 and Punnayya v. Langayya : AIR1928Mad496 The Bombay High Court has taken a similar view Nimbaji Tulsiram v. Vadia Venkati (1892) 16 Bom 683. All these were cases decided by a Single Judge. On the other hand, the Calcutta High Court has held that holders of decrees of inferior Courts, whereof execution has been stopped by the superior Court under Section 63, Civil P.C., are entitled to apply to the latter for rateable distribution under Section 63 read with Section 73 of the Code without any further application. Clark v. Alexander (1894) 21 Cal 200 and Girindra Nath Ray v. Kedar Nath : AIR1925Cal966 . The same view has been taken by the Rangoon High Court in Kwai Tong Kee v. Lint Chaung Ghee AIR 1928 Rang 157 and Chettyar Firm v. K.P.A.N.M. Firm AIR 1929 Rang 198 and by the Court of the Judicial Commissioner, 'Nagpur. R.S. Kholkute v. Tukaram Kunbi ,Girindra Nath v. Kedar Nath : AIR1925Cal966 and Kwai Tong Kee v. Lim Chaung Ghee AIR 1928 Rang 157, were decided by a Bench of two Judges, Thus the weight of authority appears to be distinctly in favour of the opposite parties. In Girindra Nath v. Kedar Nath : AIR1925Cal966 , a large number of previous decisions of the Calcutta High Court were reviewed and Ramjash Agarwala v. Guru Charan Sen (1909) 3 IC 105, a case relied upon by the learned Counsel for the applicant was expressly dissented from.

3. Speaking for myself and with due respect I entirely agree with the view of the law laid down in 29 C. W. N, 575. I may add that the decision of the Court below having done substantial justice between the parties, I should in any case have been disinclined to interfere in revision. The application is accordingly dismissed with costs.


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