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Varada Ramaswami and ors. Vs. Vumma Venkataratnam - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1922Mad99; 67Ind.Cas.546; (1922)42MLJ473
AppellantVarada Ramaswami and ors.
RespondentVumma Venkataratnam
Cases ReferredBalmer Lawrie and Co. v. Jadunath Banerjee I.L.
Excerpt:
- - he further declines to consider the objection raised by the appellants to the effect that the respondent's decree was fraudulently obtained on the ground that this has nothing to do with the question of restitution (clearly meaning under section 144). it may be that the respondent is entitled to relief to be granted under the inherent powers of the court under section 151, but whether relief should be granted under this section will have to be carefully considered......munsif. in execution he attached certain monies belonging to the judgment-debtor. various other decree holders who are appellants now before us applied for and obtained rateable distribution under section 73 of the code of civil procedure. the money was distributed. on appeal the order for rateable distribution was set aside by the court. the respondent then applied for the return of the money which had been paid to the other decree holders and this was ordered by the district munsif, the order being confirmed on appeal by the subordinate judge. the matter now comes up before us on second appeal.2. the lower courts purported to have directed the return of the money under section 144 c.p.c. though the subordinate judge in his judgment also refers to section 151. it is represented on.....
Judgment:

1. The respondent in this case obtained a decree against a certain judgment debtor Mothivala Usman in O.S. No. 776 of 1916 on the file of the Ellore District Munsif. In execution he attached certain monies belonging to the Judgment-debtor. Various other decree holders who are appellants now before us applied for and obtained rateable distribution under Section 73 of the Code of Civil Procedure. The money was distributed. On appeal the order for rateable distribution was set aside by the Court. The respondent then applied for the return of the money which had been paid to the other decree holders and this was ordered by the District Munsif, the order being confirmed on appeal by the Subordinate Judge. The matter now comes up before us on second appeal.

2. The lower courts purported to have directed the return of the money under Section 144 C.P.C. though the Subordinate Judge in his Judgment also refers to Section 151. It is represented on behalf of the appellants that Section 144, has no application to the present case on the ground that the order for rateable distribution cannot be treated as a decree within the meaning of Section 144, C.P.C. Referring to the definition of decree in Section 2 of the Code, it is clear that the order for rateable distribution can only be so treated if it is to be considered as an order under Section 47, In the present case the order was passed on contest between rival decree holders. No objection to the rateable distribution was raised by the Judgment debtor nor is it suggested that his interests were directly or indirectly affected.

3. We are referred to Rajah of Karvctnagar v. Venkata Reddi 29 M.L.J. 96, by respondent's vakil as showing that an order for rateable distribution may be treated as an order under Section 47. But that was a case in which the order was passed on an objection raised by the Judgment debtor to the effect that a particular decree holder was not entitled to participate because he had no subsisting application for execution pending. The learned Judges are at pains to distinguish between such a case and the case where the contest was between rival decree holders and to say that such a case as the latter was not governed by Section 47, C.P.C. They refer to Balmer Lawrie and Co. v. Jadunath Banerjee I.L.R(1914) . Cal. 1, as authority to this effect. In our opinion the distinction is sound and the order for rateable distribution in this case cannot be regarded as an order under Section 47 or as a decree within the purview of Section 144. Viewed therefore as an order under Section 144, the order under appeal was without jurisdiction and must be set aside.

4. The learned Vakil for the respondent seeks to support it with reference to the inherent powers of the court conferred by Section 151. The Subordinate Judge merely refers to these inherent powers but does not discuss them, nor does he consider whether their exercise is called for in the circumstances of this case. He further declines to consider the objection raised by the appellants to the effect that the respondent's decree was fraudulently obtained on the ground that this has nothing to do with the question of restitution (clearly meaning under Section 144). It may be that the respondent is entitled to relief to be granted under the inherent powers of the court under Section 151, but whether relief should be granted under this section will have to be carefully considered. The lower court will have to determine whether the exercise of these powers are necessary for the ends of justice, that is to say, whether this is the only legal method by which the respondent can obtain his dues; and the objection raised regarding the alleged fraudulent nature of the respondent's decree will be an objection to be legitimately considered.

5. In this connection, it has teen suggested that Section 73 clause (2) would afford respondent an alternative means of redress. This we may remark is not so. If the assets were not liable to be rateably distributed, clause 2 of Section 73 would have no application. With these remarks we must set aside the orders of the lower courts and direct that the petition be restored to the file of the District Munsif and disposed of according to law. Costs in this and in the lower appellate court will be provided in the order to be ultimately passed.


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