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A.L.S.P.P.L. Subramanian Chetty by His Agent, Narayana Chetty Vs. Sivaswami Chetty and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtChennai
Decided On
Reported inAIR1928Mad362; (1928)54MLJ278
AppellantA.L.S.P.P.L. Subramanian Chetty by His Agent, Narayana Chetty
RespondentSivaswami Chetty and ors.
Excerpt:
.....the terms of section 73, clearly under the. but at the same time it is perfectly clear that the decree-holders -against one of the brothers alone are entitled to rateable distribution only in respect of his share in the property that was sold. for some reason or other which 1 fail to perceive or appreciate, the learned judge in the court below seems to have ordered rateable distribution in the entire sale proceeds even to the decree-holders against one of the brothers alone, namely ramaswami, and not merely against the sale proceeds representing the share of ramaswami in the property sold. 1 am therefore clearly of opinion that having elected to obtain merely a personal decree against ramaswami it is not open to the decree-holders who have so elected now to require that such decrees..........who have obtained decrees against two brothers kasturisami and rama-swami'. there were other decree-holders who obtained decrees only against one of the brothers, namely ramaswami. it is now practically conceded that the properties, the sale proceeds of which are the subject-matter in question, had been attached in execution of all the decrees. there is no question about the properties having been the joint family properties of the two brothers. if therefore in-execution of the decrees obtained against only one of them, ramaswami, the property was attached, we must take it that only the right, title and interest of that particular judgment-debtor in the property was attached. at first i was labouring under the impression that there had been no such attachments and the question that.....
Judgment:

Srinivasa Aiyangar, J.

1. C.R.P. No. 39 of 1926: A preliminary objection is taken to this Civil Revision Petition that there is a right of suit reserved by statute for persons who feel aggrieved by erroneous orders passed under Section 73, Civil Procedure Code. and that therefore this Court should not interfere in revision. This Court has repeatedly held and it seems to me unnecessary to refer in particular to the decided cases on the question that in proper cases this Court not only may, but should, interfere. I am satisfied that the case before me is one in which this Court should interfere by way of revision, even though the parties might have under the law a right of finally adjusting their difference in a regular suit.

2. The petitioners are certain decree-holders who have obtained decrees against two brothers Kasturisami and Rama-swami'. There were other decree-holders who obtained decrees only against one of the brothers, namely Ramaswami. It is now practically conceded that the properties, the sale proceeds of which are the subject-matter in question, had been attached in execution of all the decrees. There is no question about the properties having been the joint family properties of the two brothers. If therefore in-execution of the decrees obtained against only one of them, Ramaswami, the property was attached, we must take it that only the right, title and interest of that particular judgment-debtor in the property was attached. At first I was labouring under the impression that there had been no such attachments and the question that was raised under Section 73 was one relating to rateable distribution only amongst creditors all of whom had not effected attachments in execution. No doubt, if the section which applied to the present case was Section 73, the difficulty would arise that the decree-holders against one of the brothers alone could not bring themselves under the terms of Section 73; but it is now clear that even those decree-holders had effected attachments before the sale at which these proceeds were realised. If so, such attaching decree-holders would be entitled to rateable distribution, though not under the terms of Section 73, clearly under the. principle underlying Section 63, Civil Procedure Code. But at the same time it is perfectly clear that the decree-holders -against one of the brothers alone are entitled to rateable distribution only in respect of his share in the property that was sold. For some reason or other which 1 fail to perceive or appreciate, the learned Judge in the Court below seems to have ordered rateable distribution in the entire sale proceeds even to the decree-holders against one of the brothers alone, namely Ramaswami, and not merely against the sale proceeds representing the share of Ramaswami in the property sold. Undoubtedly the principle' that should have been followed by the lower court was to take the sale proceeds and dividing it into two halves, distribute one half belonging to Kasturisami amongst all the decree-holders who had obtained decrees against both the brothers and the sale proceeds representing Ramaswami's share amongst all the decree-holders who have obtained decree not only against both the brothers but also against Ramaswami alone proportionately; in other words the decree-holders who had obtained decrees against both the brothers will get porportionately not only in the half-share of Kasturiswami but also once over again in the share of Ramaswami's sale proceeds according to the total amount made up of the decree obtained against Ramaswami whether singly or jointly with his brother.

3. Mr. Sivaramakrishna Aiyar on behalf of the respondents attempted to contend that, though the decree against Ramaswami was personally against him, he would have under certain circumstances the right of proving in execution that the decree was of such a nature that it could be executed against the entire joint family property. Whatever might be said about the execution of a decree obtained against a father in a Hindu family, it is impossible, it seems to me, to contend that for the purpose of execution one is entitled to go behind the decree and show that it is not only a decree personally against the judgment-debtor but binding on other persons or on the properties of others. For the purpose of execution at any rate such a thing could not possibly be allowed to be done. 1 am therefore clearly of opinion that having elected to obtain merely a personal decree against Ramaswami it is not open to the decree-holders who have so elected now to require that such decrees should be treated as other than mere personal decrees against him. It therefore follows that the lower court was clearly wrong in ordering rateable distribution to the decree-holders against Ramaswami alone from and out of the sale-proceeds of the property pertaining to the share of Kasturiswami.

4. Before I conclude I might also refer to one other objection that was taken by the learned Vakil for the respondent and that was that the orders for rateable distribution were made some time in October, 1924, and that no Civil Revision Petition was filed against those orders and that therefore this Civil Revision Petition which is preferred against the orders made by the learned Subordinate Judge now is not sustainable. I was at first inclined to consider that there might be some substance in this objection, but it. has turned out on an examination of the record that no orders really for rateable distribution fixing the proportion or determining the amount was passed by the Subordinate Judge, but that he merely as each decree-holder came on made an order that he was generally entitled to rateable distribution leaving it to a future date for the determination of the exact proportion and amount. The actual proportion and amount came to be decided and determined only by the order now under revision. I therefore hold that there is no substance in that objection.

5. In the result the order of the lower court is set aside and the matter will be referred back to the lower court for directing rateable distribution as indicated and if there had been payments made out in the meantime the lower court will of course take the necessary steps for the purpose of the necessary readjustments. The respondents will pay the petitioner's costs of this petition.

C.R.P No. 40 of 1926: Same order as in C.R.P. No. 39 of 1926.


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