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Pandit Sidh Nath Tewari Vs. Tegh Bahadur Singh - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in138Ind.Cas.106
AppellantPandit Sidh Nath Tewari
RespondentTegh Bahadur Singh
Cases ReferredNoor Mohamad Dawood v. Bilasiram Thakuridass
Excerpt:
.....through his exertion 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..........decree and the last of the 13th of august, 1927, being the decree of pandit sidh nath. au of the decree holders were seeking recourse to the property of the judgment-debtor and execution proceedings were taken on the 20th of november, 1928, by tej bahadur singh, on the 1st of july, 1929, by sidh nath and on the 8th of july, 1930, by moti lal. the property was about to be put up for sale at the instance of tej bahadur singh when on the 10th of april 1930, the judgment-debtor deposited rs. 500 in order to secure the postponement of the sale. thereupon on the 9th of may, 1930, sidh nath asked that he might be allowed to have ratable distribution of that money as between himself and tej bahadur singh. later, on a date not given to us, a thousand rupees was paid by the judgment-debtor.....
Judgment:

1. On the civil revision being opened Mr. Bankey Behari Lal referred the court to the decision of Laehmi Dayal v. Sri Krishan Das 2 A.L.J.370 and also to e. 295 of the Civil Procedure Oode 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. Manange 137 Ind. Cas. 634 : (1931) A.L.J. 974 : A.I.R. 1931 All. 832 and the observations of Mr. Justice Suiaiman in that case The position to-day with regard to revisions 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 revision application in preference to allowing the parties to embark on long and expressing litigation, it is within the competence of the court so to decide the decisional application. In each case it is a matter for the Judge to exercise his discretion but it is undesirable that there should not be a flood of revisions or that there should be a general departure from the rule of long standing. We, however regard this as a case which raises in a very neat from 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 s 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 the 14th of December, 1923 being Moti Lai's decree, the second of the 18th August, 1925, being Tej Bahadur Sing's decree and the last of the 13th of August, 1927, being the decree of Pandit Sidh Nath. AU of the decree holders were seeking recourse to the property of the judgment-debtor and execution proceedings were taken on the 20th of November, 1928, by Tej Bahadur Singh, on the 1st of July, 1929, by Sidh Nath and on the 8th of July, 1930, by Moti Lal. The property was about to be put up for sale at the instance of Tej Bahadur Singh when on the 10th of April 1930, the judgment-debtor deposited Rs. 500 in order to secure the postponement of the sale. Thereupon on the 9th of May, 1930, Sidh Nath asked that he might be allowed to have ratable distribution of that money as between himself and Tej Bahadur Singh. Later, on a date not given to us, a thousand 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 the 9th of 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 Rs, 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 the 9th of May, 1930, was presented on a date subsequent to the deposit and payment, We must now examine each of those propositions, The first was that the sum of Rs. 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 XIV of 1882. His decision would have been in conformity with the authorities of this Court. The authority which we have been specially referred to is Gopal Dei v. Chunni Lal 8 A. 67 : A.W.N. 1886 but in year 1908, as we have mentioned, there came into existence the remodelled 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 Mohamad Dawood v. Bilasiram Thakuridass 59 Ind. Cas. 458 : 57 C. 515 has given the right and proper interpretation to this matter. The judgment of Mr. Justice Rankin at page 519Page of 47 Cal.--[Ed.] and onwards given 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 the 10th of April, Rs. 600 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' realised 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 e. 73 of the Civil Procedure Code of 1808. 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 by 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 asset-obtained through his exertion pass into the hands of a rival decree-holder. The third point that the application made on the 9th of 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 muat 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. 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 the 10th of 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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