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R.M. Ramanathan Chettiar Vs. M.Rm.S. Chockalingam Chettiar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberCivil Revn. Petn. No. 1144 of 1962
Judge
Reported inAIR1965Mad511; (1965)2MLJ17
ActsCode of Civil Procedure (CPC), 1908 - Sections 73 - Order 21
AppellantR.M. Ramanathan Chettiar
RespondentM.Rm.S. Chockalingam Chettiar
Excerpt:
- - (4) on behalf of the respondent it is objected that the petitioner is not entitled to rateable distribution the petitioner, on his own showing has not satisfied the conditions of s......attachment before judgment and the interim order was made absolute on 20-12-1960. the petitioner filed an application on 28-3-1961 for transfer of this decree to the sub-court, devakottai, for execution, as the properties which were attached before judgment by the petitioner were situate within the territorial jurisdiction of the sub-court at devakottai. his application for transfer was ordered on 1-4-1961 by the city civil court and on the same day the decree-holder had applied for execution of the decree in the devakottai court.(2) the respondent here who obtained a decree against the judgement debtor in o. s. 206 of 1960 brought the property to sale in e. p.488 of 1960 district munsif court, devakottai. the sale was held on 20-3-1961 and on 30-3-1961 the purchaser deposited the.....
Judgment:
ORDER

(1) This revision petition arises out of an application filed by the petitioner under S. 73 C.P.C. for rateable distribution. He filed O. S. 2347 of 1960 on the file of the City Civil Court, Madras and obtained a decree on 22-12-1960 for a sum of Rs. 25000. During the pendency of the suit, he applied for an order of attachment before judgment and the interim order was made absolute on 20-12-1960. The petitioner filed an application on 28-3-1961 for transfer of this decree to the Sub-Court, Devakottai, for execution, as the properties which were attached before judgment by the petitioner were situate within the territorial jurisdiction of the Sub-Court at Devakottai. His application for transfer was ordered on 1-4-1961 by the City Civil Court and on the same day the decree-holder had applied for execution of the decree in the Devakottai Court.

(2) The respondent here who obtained a decree against the judgement debtor in O. S. 206 of 1960 brought the property to sale in E. P.488 of 1960 District Munsif Court, Devakottai. The sale was held on 20-3-1961 and on 30-3-1961 the purchaser deposited the balance of the sale proceeds deducting what he had already paid on the date of the sale. The application for rateable distribution was filed by the petitioner making the respondent alone a party.

(3) Learned counsel for the respondent states that there are other decree-holders to whom also a portion of the sale proceeds had been distributed and that the petitioner should have impleaded them also as parties to the application, and that the petition should have been rejected for non-joinder of those decree-holders. I see considerable force in this argument; but as I am disposing of this revision petition on a more fundamental point, I do not think it is necessary to express my final opinion.

(4) On behalf of the respondent it is objected that the petitioner is not entitled to rateable distribution the petitioner, on his own showing has not satisfied the conditions of S. 73 C.P.C. to entitle him to a share in the sale proceeds.

(5) Under S. 73 C.P.C., the petitioner must have applied to the court in which the assets are held in this case Dist. Munsif Court, Devakottai, before the receipt of such assets i.e., 30-3-1961. Admittedly, no such application for execution had been filed by the petitioner. Learned counsel for the petitioner urges that the application for transfer, which he filed in the City Civil Court, Madras on 28-3-1961, should be regarded as an application for execution and that when the decree had been transferred, he must in law be deemed to have applied for execution even in the transferee court. It is impossible to accept this contention.

There is obvious difference between an application for transfer and an application for execution. An application for transfer need not be in the form of an application for execution and it is only after the transfer is ordered that the decree-holder has to apply for execution complying with the provisions of Order 21 C.P.C. The application for transfer is merely a step-in-aid and surely not an application for execution. The result, therefore, is that the petitioner not having applied for execution in the District Munsif Court, Devakottai, before the receipt of the assets is not entitled to claim rateable distribution. The revision petition fails and is dismissed. No costs.

(6) Revision dismissed.


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