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Rafiq Mohammad Vs. Mangilal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberCivil Revn. No. 457 of 1965
Judge
Reported inAIR1968Raj3
ActsCode of Civil Procedure (CPC) , 1908 - Sections 73 - Order 21, Rule 11
AppellantRafiq Mohammad
RespondentMangilal and ors.
Appellant Advocate B.B. Desai and; R.C. Maheswari, Advs.
Respondent Advocate A.L. Mehta, Adv. for; Mangilal, Adv.
DispositionPetition partly allowed
Cases ReferredJogesh Prosad v. Lachmi Narayan
Excerpt:
.....person as a workman from both the establishments, but while granting and moulding the reliefs the court will take these facts into consideration. - lachmi narayan, (1941) 45 ca] wn 674. it may be stated here that an examination of the cheque which was received by the munsif goes to show that it could be endorsed in favour of rafiq mohammad. 1940, and the only form of payment which thedecree-holders desired was that the cheque should be endorsed over to them......j. 1. this is a revision application bv rafiq mohammad decree-holder against an order of the civil judge. udaipur. declining; to grant him rateable distribution in respect of a decree for rs 3948.80 and granting rateable distribution to mangiial in respect of a decree for rs 8142.24 the application has been contested on behall of mangilal.2. rafiq mohammad had a decree against lalchand for rs. 2000/. plus rs. 143.75 costs plus pendenle lite and future interest at 6 p.c. per annum from the date of the institution of the suit namely 14-4-64. he filed execution case no 52/65 in the court of munsif. udai-pur on 2-3-85 and prayed for the attachment of the amount payable lo lalchand judgment-dehtor. which was lying with the executive engineer, irrigation. kankroli this amount was.....
Judgment:
ORDER

Jagat Narayan, J.

1. This is a revision application bv Rafiq Mohammad decree-holder against an order of the Civil Judge. Udaipur. declining; to grant him rateable distribution in respect of a decree for Rs 3948.80 and granting rateable distribution to Mangiial in respect of a decree for Rs 8142.24 The application has been contested on behall of Mangilal.

2. Rafiq Mohammad had a decree against Lalchand for Rs. 2000/. plus Rs. 143.75 costs plus pendenle lite and future interest at 6 p.c. per annum from the date of the institution of the suit namely 14-4-64. He filed execution case No 52/65 in the court of Munsif. Udai-pur on 2-3-85 and prayed for the attachment of the amount payable lo Lalchand judgment-dehtor. which was lying with the Executive Engineer, Irrigation. Kankroli This amount was attached and a cheque for Rs. 2165.24 was sent by the Executive Engineer and was received in the court of the Munsif. Udaipur before 25-5-65. It was credited to the account of the Munsif's court on 31-5-65.

3. Mangilal had a decree againsl Lal-chand for Rs. 8142.24 from the court of Civil Judge. Udaipur He filed execution case No. 52 of 1965 in the court of Civil Judge on 19-5-65 and prayed for an attachment of the amount payable lo Lalchand which was lying with the Executive Engineer irrigation. Kankroli As this amount had already been sent lo the court of Munsif by the Executive Engineer Ihe Civil Judge directed the Munsif lo send the amount to his court. This amount is alleged to have been received in the court of the Civil Judge by the order of the Munsif dated 11-8-65.

4. Rafiq Mohammad had another decree against Lalchand for Rs. 3948 80 from the court of Civil Judge He filed execution case No. 77/64 in the courl of Civil Judge on 22-8-64 and made a prayer for the attachment ofthe amount payable to Lalchand lying with the Executive Engineer, Irrigation, Kankroli. This execution application was pending in the court of the Civil Judge when the sum of Rs. 2165.24 was received from the court of Munsif

5. The first contention on behalf of Rafiq Mohammad is that the assets were received by the court of Munsif within the meaning of Section 73 on the date on which the cheque for Rs. 2165.24 was received by that court from the Executive Engineer. Irrigation, Kankroli. From the record it appears that this cheque was received before 25-5-65 because on that date Mangilal made an application in the court of Munsif asking for rateable distribution in which it was stated thai the assets had already been received by that court. It is argued that before Mangilal made this application Rafiq Mohammad became entitled to receive the entire amount in execution of his decree which was being executed in the Munsif's court as the cheque had been received there

Reliance is placed on the decision in Jogesh Prosad v. Lachmi Narayan, (1941) 45 Ca] WN 674. It may be stated here that an examination of the cheque which was received by the Munsif goes to show that it could be endorsed in favour of Rafiq Mohammad. But in my opinion the present case is distinguishable from Jogesh Prosad's case inasmuch as no prayer was made on behalf of Rafiq Mohammad to endorse the cheque in his favour. It was observed in Jogesh Prosad's case that the expression 'assets' obviously implies the idea of assets realised or converted into cash, for, unless the property has been converted into some form which renders it available for immediate distribution, the court cannot be said to have received or held such assets. They went on to say-

'If, therefore, the assets are brought before the Court in such a shape that the Court can forthwith make payment in favour of the creditor, through whose efforts they were so brought, no claim for distribution by other creditors could be entertained after the assets are so received. In the presnl case, what the Court received was not cash money but a cheque. We agree with Mr. Choudhury that the cheque may not be legal tender, and ordinarily, if a cheque is drawn upon a Bank, one cannot say that it amounts to payment unless the cheque is actually cashed and the money received.

From this it will appear that the sum of Rs. 3,229 which represented the sale proceeds of the attached goods of the judgment-debtors was lying in the Aliporc Treasury to the credit of the District Judge By drawing and signing the cheque referred to in the above order, the District Judge wanted that this money should be transferred to the credit of the Subordinate Judge The cheque was delivered over to the Subordinate Judge and accepted by him on the 23rd of May. 1940, and the only form of payment which thedecree-holders desired was that the cheque should be endorsed over to them. There is no question here of the solvency of the drawer, and even if the cheque was subsequently dishonoured, the decree-holder would have other remedies on a separate cause of action. The Subordinate Judge was. therefore, quite competent to pay over the money to the decree-holders, the very moment that he received the cheque on the 23rd of Mav 1940. In these circumstances we hold that the Court had really received and held assets on the 23rd of May, 1940. when the cheque was actually delivered over to the Court and accepted by it. It is not necessary for us to express any opinion on the general proposition as to whether in all circumstances a cheque would amoust to an asset within the meaning of Section 73 of the Code.'

With regard to the above case it was observed in In re Frank Morton Fisk AIR 1956 Cal 656.

'Where a cheque is sent by the garnishee and the Court accepts the cheque with a view to endorse and hand it over to the judgment-creditor it is possible to say on the analogy of that case that the remittance and acceptance of a cheque amounts to realisation of assets'. I am of the opinion that it is only when the decree-holder applies for the endorsement of the cheque in his favour and is entitled to the whole of the amount that it can be said that the receipt of the cheque amounts to receipt of assets within the meaning of Section 73. Rafiq Mohammad therefore did not become entitled to receive the whole of the amount of the cheque in execution of his decree for Rs. 2000 (which amounted to more than Rs. 2165.24 including costs and interest) because he did not apply for the endorsement of the cheque in his favour.

6. The next contention on behalf of Rafiq Mohammad is that he is entitled to rateable distribution along with Mangilal in respect of his other decree for Rs. 3948.80 also which was pending in the court of the Civil Judge. The learned Civil Judge declined to grant him rateable distribution of this decree on this ground that no application for rateable distribution was made What Section 73 lays down is that in order to claim rateable distribution a decree-holder must have applied under Order 21 Rule 11 of the Code for execution of his decree. It is not necessary for a decree-holder to make a specific application for rateable distribution. In this connection I may refer to the decision of a Division Bench of the Allahabad High Court in Suraj Lal v. P R. K Sugar Works, AIR 1961 All 371. Rafiq Mohammad is therefore entitled to rateable distribution in respect of both of his decrees along with Mangilal

7. The revision application is allowed in part as indicated above. In the circumstances of the case, I leave the parties to bear their own costs of this revision application


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