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Viraragava Ayyangar Vs. Varada Ayyangar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Judge
Reported in(1882)ILR5Mad123
AppellantViraragava Ayyangar
RespondentVarada Ayyangar
Excerpt:
civil procedure code, 1877, sections 294, 295 - rateable distribution of assets--decree-holder for unascertained mesne profits who has applied for execution entitled to. - .....not obtained satisfaction, to share in the distribution. the decree held by the petitioner for mesne profits was a decree for money. although the amount was still uncertain, the petitioner had applied to the court to execute that decree. he had not only petitioned that the mesne profits should be ascertained, but he had applied on april 1st, 1881, to attach certain immoveable property under section 255. he came within the purview of section 295. mr. ramachandra rau saheb, however, argues that there wore no assets in the hands of the court, because the court having granted his client, the rival decree-holder, leave to bid, was bound to set off the amount of his bid against so much of the judgment-debt. it is true that section 294 is awkwardly expressed, but it must be read with the.....
Judgment:

Charles A. Turner, Kt., C.J.

1. The 295th Section of the Civil Procedure Code entitles all holders of decrees for money, who, prior to realization, have applied to the Court holding the assets for execution of their decrees and have not obtained satisfaction, to share in the distribution. The decree held by the petitioner for mesne profits was a decree for money. Although the amount was still uncertain, the petitioner had applied to the Court to execute that decree. He had not only petitioned that the mesne profits should be ascertained, but he had applied on April 1st, 1881, to attach certain immoveable property under Section 255. He came within the purview of Section 295. Mr. Ramachandra Rau Saheb, however, argues that there wore no assets in the hands of the Court, because the Court having granted his client, the rival decree-holder, leave to bid, was bound to set off the amount of his bid against so much of the judgment-debt. It is true that Section 294 is awkwardly expressed, but it must be read with the following section; and to give effect to both, it must be held that the receipt can only be accepted for so much of the judgment-debt as the assets applicable to its discharge may suffice to satisfy.

2. The order of the Subordinate Judge is set aside, and the Subordinate Judge is directed to pass fresh orders. The petitioner will recover the costs of this application from the respondent.


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