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Anandrao Vishnupant Bagdare Vs. Motilal Pandurang Mahajan and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMadhya Pradesh High Court
Decided On
Case NumberCivil Revn. No. 428 of 1960
Judge
Reported inAIR1962MP217
ActsCode of Civil Procedure (CPC) , 1908 - Sections 64 and 73
AppellantAnandrao Vishnupant Bagdare
RespondentMotilal Pandurang Mahajan and ors.
Appellant AdvocatePande, Adv.
Respondent AdvocateS.D. Sanghi, Adv.
DispositionRevision dismissed
Cases ReferredNachiappa Chettiar v. Subhier
Excerpt:
- - 6 judgment-debtor shankar had agreed to sell this property to the applicant anandrao but as he failed to do, so. further orders were passed by the custody court either to transfer the attached amount to the executing court nor the executing court passed any order for payment of this attached amount to the applicant decree-holder and the final order regarding disposal of the amount attached as well as the remaining amount was passed on 16-8-1960. the reasons for this would be found in the various order-sheets of the original suit after 16-4-1960, the execution case no. if these two conditions are satisfied;.....under section 73 if in execution of a decree in one suit assets are held by a court and more persons than one applied to the court; for the execution of the decree for payment of money passed against the same judgment-debtor before the receipt of such assets, they are entitled ed to rateable distribution, of these assets. in other words, there must be assets held by one executing court and the applications for execution of other decrees must, be made before the asset? were received by the executing court. if these two conditions are satisfied; the new decree-holders would be entitled to the benefit of section 73. 8. in the instant case, decree-holder of execution case no. 13/60 had filed his executionapplication on 6/12-1-1960. similarly.....
Judgment:
ORDER

M.A. Razzaque, J.

1. The applicant decree-holder Anandrao has filed this revision under Section 115 of the Code of Civil Procedure to revise the order dated 16-8-1860 parsed by Civil Judge Class II, Kasarawad, in Execution Case No. 103/60 arising out of civil suit No. 13/57, whereby he held that the non-applicants decree-holders in execution cases Nos. 113/60, 13/60, 102/60 and 109/60 are entitled to reteable distribution under Section 73 of the Code of Civil Procedure.

2. The question for our decision in this case is that when the custody court and the executing court are the same, then which is the exact point of time when assets should be considered to have been received by the executing court within the, meaning of Section 73 of the Code of Civil Procedure so as to entitle the other decree-holders to claim rateable distribution. Counsel, for the parties are agreed that other ingredients of Section 73, are fulfilled in the case and the dispute is only about the time when the assets should be considered to have been, received.

3. The facts are that non-applicant No. 6 judgment-debtor Shankar had agreed to sell this property to the applicant Anandrao but as he failed to do, so. Anandrao filed civil suit No. 13/ 57 for specific performance of agreement to sell. The suit was decreed on 11-4-1960, and the applicant was ordered to 'deposit' Rs. 1983/- as sale price and thereafter further proceedings regarding the sale-deed and its registration were to be taken in that suit, the judgment-debtor Shankar was ordered to pay applicant's costs amounting to Rs. 408.88nP. In pursuance of the said decree, the applicant deposited Rs. 1983/- on 14-4-1960 in that civil suit for payment to the judgment-debtor Shankar.

4. Next day, i.e. on 15-4-1960, the applicant decree-holder filed his execution application to recover the said amount of costs from, the judgment-debtor and he prayed therein, that out of Rs. 1983/- deposited in civil suit No. 13/ 57, the amount of costs bo attached and paid to him. This is execution case No. 103/60.

5. On 15-4-1960 the executing court ordered for a report regarding the correctness of the petitioner's execution application and also direct-ad that the amount be attached and fixed the case for 20-4-1960. The order sheet dated 20-4-1960 shows that the execution application was correct and! that the amount was attached. This means that the cost amount was attached after 15th, and on or before 20th April 1960. It is important to note that after the attachment no. further orders were passed by the custody court either to transfer the attached amount to the executing court nor the executing court passed any order for payment of this attached amount to the applicant decree-holder and the final order regarding disposal of the amount attached as well as the remaining amount Was passed on 16-8-1960. The reasons for this would be found in the various order-sheets of the original suit after 16-4-1960, the execution case No. 103/60 and the other execution cases started by the non-applicants decree-holders. The reasons, in short, were that the other decree-holders had applied for rateable distribution, that the judgment-debtor had not executed the sale-deed and therefore the order of payment of the amount was delayed till the sale-deed was executed and registered which, was finally executed by the court and registered on or about 16-8-1960.

6. The other decree-holders claiming rateable distribution, had filed their execution applications for various amounts against the same judgment-debtor on various dates as shown belaw:--

Ex.Case No.

Date.

Decree-holder.

Amount.

1.13/60

13/60

25-4-1980

6-1-1980

Sahdeo Rao

Motilal

Rs.

Rs.

2315/2.

496/8.

102/60

109/60

12-1 -1960

15-4-1960

22-4.1960

Motilal

Pannalal

Rs.

Rs.

457.45nP.

341.47nP.

7. Under Section 73 if in execution of a decree in one suit assets are held by a court and more persons than one applied to the court; for the execution of the decree for payment of money passed against the same judgment-debtor before the receipt of such assets, they are entitled ed to rateable distribution, of these assets. In other words, there must be assets held by one executing court and the applications for execution of other decrees must, be made before the asset? were received by the executing court. If these two conditions are satisfied; the new decree-holders would be entitled to the benefit of Section 73.

8. In the instant case, decree-holder of execution case No. 13/60 had filed his executionapplication on 6/12-1-1960. Similarly decree-holder in execution case No. 102/60 had filed his application on 15-4-1960. Whatever may be the date of the receipt of assets in applicant's execution application which was filed on 15-4-1960, that date would undoubtedly be after 15-4-1960. Accordingly the decree-holders in these two execution applications, namely No. 13/60 and No. 102/60, would be entitled to rateable distribution because they had applied before the receipt of the assets.

9. The difficulty arises in the case of decree-holder in execution case No. 113/60 who had filed his execution application on 25-4-1960 and execution case No. 109/60 in which the execution application was filed on 22-4-1960. In other words both these execution applications were filed after the amount was attached by the applicant and I have, already said that the attachment must have taken place after 15-4-1960 and on or before 20-4-1960. It is here that we have to determine the exact point of time when the assets should be considered as received by the executing court within the meaning of Section 73 of the Code of Civil Procedure.

10. On behalf of the petitioner it was urged that this date of receipt of assets would be the date on which the amount was attached by the petitioner but for this he cited no authority. On behalf of the non-applicants it was urged that the material date on which the court must be taken to have received the assets was 16-8-1960 when the order for payment was made by the executing court and lor this reliance was placed on Narayan Ganesh v. Fatma Daud, AIR 1952, Bom 70 and Imperial Bank of India v. Balasubramania Pandia, AIR 1945 Mad 412.

11. In the Bombay case, the facts were that A obtained a money decree against B on 23-1-48, On 27-1-48 A filed an application for execution praying for payment of the amount lying to the credit of his suit as a result of attachment before judgment and sale of B's movable property pending suit, C, another creditor, also obtained a money decree against B on 7-2-1948 from the same court after attaching before judgment movable property of B.

On 19-2-1948 C applied for rateable distribution of the amount lying to the credit of A's suit. On 20-3-1948 the court ordered the payment of the entire amount to A. Held that the material date on which the court must be taken to have received the assets was 20-3-1948 when the court ordered payment of the amount to A in execution. Hence C who had applied for rateable distribution prior to this date was entitled to claim rateable distribution of the amount along with A. This Bombay case relied on the principle enunciated in Nachiappa Chettiar v. Subhier, ILR 46 Mad 506: (AIR 1923 Mad 505) (FB) and AIR 1945 Mad 412, already quitted.

12. In AIR 1945 Madi 412 in which ILR 49 Mad 506: (AIR 1923 Mad 505) (FB) was relied, the observations were as under:--

'If the executing court and the custody court are different, the amount lying in the custody court can be got at by the decree-holder executing his decree in another court by attaching the amount in the custody court in the manner provided under Order 21 Rule 52. After levying the attachment in the manner laid down in that section further orders would be passed by the executing court requesting the custody court to send so much of the money as is necessary for payment to the decree-holder. The money would then be received by the executing court and that would be the time when the assets are received for the purpose of Section 73. If the two courts had been different and the money had been received by the executing court from the custody court, there would be no difficulty in finding the exact time before which the persons claiming rateable distribution, must apply for execution of their decree.

But in a case where the executing court and the custody court are the same there is considerable difficulty in determining this point of time. In such a case realization of assets under Section 73 takes place when the court as the custody court passes an order transferring the amount standing to the credit of one suit to the credit of the decree under execution. Even if there is no formal order by the custody court transferring the amount to the credit of one of the suit under execution, if payment out is ordered by the executing court, money is impliedly transferred by the custody court to the Credit of the decree in which payment out is ordered. Before assets may be said to have been received, two things must take place; first the custody court must come to the conclusion that there was no objection to transfer the amount necessary to pay the decree-holder at whose instance the fund was attached; second, there must be an order by the custody court transferring the amount to the credit of the first attaching creditor's suit which it is engaged in executing. It is only then that there can be said to be receipt of assets within the meaning of Section 73.'

13. Now let us apply the above, principles to the facts of the present case. We have seen above that the amount was attached in the petitioner's execution application after 15th and on or before 20th April 1960, and it continued in that state, of things until 16-8-1960 when the payment out order was made. After the attachment of the amount no order transferring the said amount to the credit of the decree under execution was made by the custody court. Even if there was no formal order by the, custody court transferring the amount to the credit of the executing court, the executing court also did, not pass any payment put order for about four months and such payment out order was finally passed only, on 16-8-1960. In the circumstances therefore it must be held that the, assets were received by the executing court on 16-3-60 within the meaning of Section 73. The two decree-holders in execution cases Nos. 113/60 and 109/60 who had applied on 25-4-1960 and 22-4-1960 respectively, i.e. long before 16-8-60, would also be entitled to rateable distribution.

14. The contention of petitioner's counsel that the assets must be deemed to have been received by the executing court from the custody court on the date the petitioner got them attached has no substance. An attachment does not create any interest in the property attached. It does not create any lien in favour of the attaching creditor. It only prevents alienation of the property on the part of the judgment-debtor, so that if the judgment-debtor alienates the property contrary to attachment, then the alienation becomes void as against all claims enforceable under the attachment under Section 64. (Vide AIR 1952Bom 70, supra). In other words, mere order atattachment of the fund does not of itself effecta transfer to the credit of the suit in which the attachment is made so as to constitute a receipt of assets within the meaning of Section 73. Accordingly I reject this contention.

15. It would therefore be found that all the decree-holders in the four execution, applications, namely, Nos. 113/60, 13/60, 102/60 and 109/60, are entitled to rateable distribution. The learned judge of the lower court observed that the assets would be considered to have been received by the executing court on the day on which the sale-deed was registered, i.e. 16-8-1960, and as the new decree-holders had applied before this date, they were entitled to rateable distribution. I do not agree with this reasoning. But as we have found above, the order has to be maintained though for different reasons.

16. In the result, the revision fails and it is dismissed. The order of the lower court is confirmed. The petitioner shall pay the costs of the non-applicants decree-holders and boar his own. Counsel's fee Rs. 20/- for each side, if certified. The non-applicants decree-holders will get only one set of costs as only one counsel appeared for them all.


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