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Mohd. Jan Vs. Haji Abdul Sattar and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtDelhi High Court
Decided On
Case NumberEx. Second Appeal No. 6 of 1970, from order of J.D. Jain, Addl. Dist. J. Delhi, D/- 8-12-1969
Judge
Reported inAIR1971Delhi132
ActsCode of Civil Procedure (CPC), 1908 - Sections 73
AppellantMohd. Jan
RespondentHaji Abdul Sattar and ors.
Appellant Advocate H.K.L. Sabharwal and Y.K. Sabharwal, Advs
Respondent Advocate D.N. Raizada, Adv.
Excerpt:
.....to mean ' one person holding more than one decrees'. - - 'a person holding more than one decrees'.such words not being there, the court is not privileged to incorporate the same, in the section, as the learned counsel for the respondent would like to be done. for, in such a case, he is not prejudiced if only one of his decrees in its entirety, is satisfied from the assets held by the court. if any property is still available from our to which he his other decrees can be satisfied, he can proceed against that property for execution of his said decrees and there is no bar or restriction on him to do so. there is no question of unfair treatment to him in respect of his other decrees, and unfair advantage to him by the satisfaction in full of his one decree, while his other decrees..........respondent no. 1, the decree-holder, applied on july 31, 1968 for rateable distribution of the assets held by the court among all the aforesaid three decrees in favor of the decree-holders. this application was contested. the execution court gave its decision in favor of the decree-holders, holding that the rateable distribution was permissible amongst the various decrees, even though held by the same decree-holders. this appeal of the judgment-debtor was dismissed by the additional district judge, delhi. the judgment debtor, thereforee, came up to this court in execution second appeal.2. the relevant portion of section 73 of the code of civil procedure reads as follows:'(1) where assets are held by a court and more persons than one have, before the receipt of such assets, made.....
Judgment:

1. Haji Abdul Sattar, respondent No. 1, and his wife Zohra Bi, respondent No. 2, obtained three separate money decrees against Mohd. Jan, the appellant, Mehtabuddin, respondent No. 3, and M/s. Jan Tin Industries, respondent No. 4 for Rs.9,000/- with costs Rupees 3,250/- with costs and Rs. 1,300/- with costs respectively. The decree-holders took out execution of their first decree for Rs. 9,000/- and got attached a house belonging to the judgment-debtor, Mohd. Jan, the present appellant. Objections by his wife, under Order 21, Rule 58 of the Code of Civil Procedure, were dismissed. A declaratory suit by her claming the property as hers met the same fate. In appeal, the trial court's judgment was modified party to the extent that she was held entitled to a charge on the property to the extent of Rs.2,000/-

The house was put to auction; but the appellant, on depositing the entire decretal amount in court, prayed for its release from attachment. At this stage, Haji Abdul Sattair, respondent No. 1, the decree-holder, applied on July 31, 1968 for rateable distribution of the assets held by the court among all the aforesaid three decrees in favor of the decree-holders. This application was contested. The execution court gave its decision in favor of the decree-holders, holding that the rateable distribution was permissible amongst the various decrees, even though held by the same decree-holders. This appeal of the judgment-debtor was dismissed by the Additional District Judge, Delhi. The judgment debtor, thereforee, came up to this Court in execution second appeal.

2. The relevant portion of Section 73 of the Code of Civil Procedure reads as follows:

'(1) Where assets are held by a court and more persons than one have, before the receipt of such assets, made application to the Court for execution of decrees for the payment of money passed against the same judgment-debtor and have not obtained satisfaction thereof, the assets, after deducting the costs of realisation, shall be rateably distributed among all such persons.

x x x x'

3. The above language leaves no room for doubt that applications to the court, for execution of decrees for payment of money passed against the same judgment-debtor, by rateable distribution, as required to be made by 'more persons than one'. The words used could have been: 'a person holding more than one decrees'. Such words not being there, the court is not privileged to incorporate the same, in the section, as the learned counsel for the respondent would like to be done. The intention appears to be secure an equitable distribution of the property by placing the decree holder, if more than one, on the same level and making the property rateably divisible among them. The question of an equal distribution would not arise if the decree-holder happens to be one. For, in such a case, he is not prejudiced if only one of his decrees in its entirety, is satisfied from the assets held by the court. If any property is still available from our to which he his other decrees can be satisfied, he can proceed against that property for execution of his said decrees and there is no bar or restriction on him to do so.

There is no question of unfair treatment to him in respect of his other decrees, and unfair advantage to him by the satisfaction in full of his one decree, while his other decrees remain wholly or partly unsatisfied. The reference by the learned counsel for the respondent as by the Courts below, to S. 13 of the General Clauses Act, providing that the words in singular include the plural and vice versa, is neither relevant nor of any help to him; for the said section will apply 'unless there is anything repugnant in the subject or context'. The subject or context in S. 73 is the rateable distribution of the assets held by the court 'among all such persons'. By the very nature of things, such persons would be more than one and the term 'persons' in the plural form cannot be read to mean 'person' in the singular form. The decree-holders-respondent Nos. 1 and 2, although entitled to execute their decrees are not entitled under Section 73 of the Code of Civil Procedure, to any rateable distribution of assets among their various debtors. Under the circumstances, the appeal is accepted, as the judgment dated December 8, 1969 of the Additional District Judge, Delhi, could be supported. The same is set aside. There shall, however, be no order as to costs.

4. Appeal accepted.


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