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Mst. Saraswatibai and ors. Vs. Govindrao Keshavrao Mahajan and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMadhya Pradesh High Court
Decided On
Case NumberCivil Revn. No. 74 of 1959
Judge
Reported inAIR1961MP145
ActsCode of Civil Procedure (CPC) , 1908 - Sections 73 - Order 21, Rules 11(2), 17 and 30
AppellantMst. Saraswatibai and ors.
RespondentGovindrao Keshavrao Mahajan and ors.
Appellant AdvocateP.R. Padhye, Adv.
Respondent AdvocateV.S. Pandit, Adv. for Non-applicants 1 and 2
DispositionRevision allowed
Cases ReferredJugalkishore Saraf v. Raw Cotton Co. Ltd.
Excerpt:
- - ) but which was specifically referred to a division bench, it was held that a creditor claiming rateable distribution on the strength of a money decree must himself ask for attachment and safe of the property or for execution of his decree by oneof the modes, not including rateable distribution, specified in order 21. rule 11(2)(j) of the c. 4. the question for consideration here is whether an otherwise good application for execution canbe regarded, for the purposes of section 73 of the code of civil procedure, to be one made in accordance with law even if the only mode in which the assistance of the court stated to be required is rateable distribution of the assets to be received in another execution case pending in the same court......court. in two of these cases, (no. 14 of 1955 and no. 438 of 1955), there is a prayer only for rateable distribution of the assets held in execution case no. 435of 1955.in the third case (no. 2070 of 1955), the relief claimed is attachment of immoveable property of the judgment-debtor and rateable distribution of the assets held in execution case no. 435 of 1955. pursuant to the provisions of section 63 of the code of civil procedure, the sale proceeds and the four execution cases were transferred to the court of the additional district judge, khandwa, where another execution application against the same judgment-debtor was also pending. reiving upon 25 nag lr 94: (air 1929 nag 148), the 'additional district judge held that the applications in execution cases nos. 14, 436 and 2070 of.....
Judgment:

Pandey, J.

1. This revision has come up before us in pursuance of the following order of Bhutt, C. J. :

'As the decision o a Division Bench of this Court in Balaji v. Gopal, 25 Nag LR 94 : (AIR 1929 Nag 148) is likely to come up for consideration, this revision shall be heard by a Full Bench.'

2. The facts of the case giving rise to the question, which necessitated a reference to a Full Bench, may be briefly stated. In Execution Case No. 435 of 1955 pending in the Court of the First Civil Judge, Burhanpur, a house of the judgment-debtor was attached and put to sale. The auction-purchaser paid the price on 20th August 1957. Before that date, three other execution applications against the same judgment-debtor were made in that Court. In two of these cases, (No. 14 of 1955 and No. 438 of 1955), there is a prayer only for rateable distribution of the assets held in Execution Case No. 435of 1955.

In the third case (No. 2070 of 1955), the relief claimed is attachment of immoveable property of the judgment-debtor and rateable distribution of the assets held in Execution Case No. 435 of 1955. Pursuant to the provisions of Section 63 of the Code of Civil Procedure, the sale proceeds and the four execution cases were transferred to the Court of the Additional District Judge, Khandwa, where another execution application against the same judgment-debtor was also pending. Reiving upon 25 Nag LR 94: (AIR 1929 Nag 148), the 'Additional District Judge held that the applications in Execution Cases Nos. 14, 436 and 2070 of 1955 were not valid applications for execution and could not furnish any basis for rateable distribution of assets under Section 73 of the Code.

3. On a question, which did not arise out of the facts of 25 Nag LR 94: (AIR 1929 Nag 148) (cit. sup.) but which was specifically referred to a Division Bench, it was held that a creditor claiming rateable distribution on the strength of a money decree must himself ask for attachment and safe of the property or for execution of his decree by oneof the modes, not including rateable distribution, specified in Order 21. Rule 11(2)(j) of the C. P. C.

4. The question for consideration here is whether an otherwise good application for execution canbe regarded, for the purposes of Section 73 of the Code of Civil Procedure, to be one made in accordance with law even if the only mode in which the assistance of the Court stated to be required is rateable distribution of the assets to be received in another execution case pending in the same Court. As indicated earlier, 25 Nag LR 94: (AIR 1929 Nag 148) (cit. sup.) is a direct authority for the contrary view, though the decision of that case is supportable on the ground that there was, unlike the case be-fore us, no execution application and only an application for rateable distribution of assets had been filed. Some support for that view was sought to be derived from Gopal Parshuram v. Damodar Janardan, AIR 1943 Bom 353.

The test of an application for execution being in accordance with law, as laid down in that case, is whether it is possible for the Court to issue execution upon it, that is, whether it is within the power of the Court to grant the kind of relief asked for. In our opinion, the three applications in this case fulfil that test. A view different from the one in 25 Nag LR 94: (AIR 1929 Nag 148) (cit. sup.) was taken in Gobardhan Dass v. Jang Bahadur, TLR I Luck 569 : (AIR 1926 Oudh 616), Abdul Salam v. Veerabhadra Raju, ILR 52 Mad 760: (AIR 1929 Mad 703) (FB), Deoraji Kuer v. Jadunandan Rai, ILR 53 All 125 : (AIR 1931 All 92); Ghanaya Lal v. Punjab National Bank Ltd., ILR 14 Lah 6 : (AIR 1932 Lah 534), Jambanna v. Honnappa, AIR 1957 Andh Pra 1017 and Debi Dutt v. T. Bellan, AIR 1959 Cal 566. The Calcutta High Court and the Allahabad High Court expressly dissented from the view taken in the Nagpur case.

5. In our opinion, the Nagpur view is not correct. An application for execution must he in the form prescribed by Order 21, Rule 11, Civil Procedure Code, setting out inter alia the mode in which the assistance of the Court is required, namely, whether-

'(i). (i) by the delivery of any property specifically decreed;

(ii) by the attachment and sale, or by the sale without attachment, of any property;

(iii) by the arrest and detention in prison of any person;

(iv) by the appointment of a receiver; (v) otherwise, as the nature of the relief granted may require.'

The words of Clause (j)(v) 'otherwise as the nature of the relief granted may require' are wide. As the Calcutta High Court pointed out in the case referred to above, they cannot be construed ejusdem generis with other clauses because there is no common genus. Also, the relief granted in each of the three cases here was a money decree and the mode of the assistance of the Court sought was recovery of the decretal amount by rateable distribution. Order 21, Rule 30 of the Code is not exhaustive of the modes in which a money decree may be executed. The Code itself provides for another mode of execution of a money decree, namely, rateable distribution. That being so, we are of the view that recovery of the money decreed by rateable distribution of assets, being a permissible mode of execution, is within the ambit of Clause (j)(v) of Order 21,Rule 11(2) of the Code and an execution application which specified it as the mode in which the assistance of the Court is required is one in accordance with law for purposes of Section 73 of the Code. We are supported in this view by the cases we have mentioned at the end of the last paragraph.

6. There is another aspect of this case which perhaps escaped the notice of the lower Court. Since, as contended for, the only defect in these three applications was in the specification of the mode in which the assistance of the Court was required, that defect was not such as could preclude the decree-holders from obtaining relief: Jugalkishore Saraf v. Raw Cotton Co. Ltd., 1955-1 SCR 1369: ((S) AIR 1955 SC 376). When the three applications for execution were made, the Court had to scrutinize the applications as required by Order 21, Rule 17 of the Code and, if they were found to be defective, the Court should have either rejected the application or allowed the defect to be removed there and then or within a time to be fixed by the Court.

When neither of the two courses was followed and the applications were duly registered, they cannot be subsequently discarded as not being in accordance with law without giving to the decree-holders an opportunity to remedy the defects. In a similar situation, the Supreme Court treated a subsequent execution application specifying the proper mode as curing the defect though it was made beyond time: 1955-1 SCR 1369; ((S) AIR 1955 SC 376), (cit. sup.). It follows that even on the view taken by the lower Court, the decree-holders should have been permitted to remove what were regarded as defects by amending their execution applications,

7. In the view that we have taken, this revision succeeds and is allowed. The lower Court's order dated 24th December 1958 is set aside and the case is remitted to that Court for rateable distribution of the assets. The applicants shall have their costs of this revision. Counsel's fee Rs. 50/-.


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