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Thirumayee Ammal Vs. Palaniappa Gounder - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Case NumberCivil Revn. Petn. No. 2522 of 1970
Judge
Reported inAIR1973Mad7
ActsCode of Civil Procedure (CPC) - Sections 73
AppellantThirumayee Ammal
RespondentPalaniappa Gounder
Cases ReferredNachiappa Chettiar v. Subbier.
Excerpt:
- - section 73 of the civil procedure code clearly provides that the applicant-decree-holder for rateable distribution must file the application before the receipt of the assets by the executing court. 44 mlj 413 air 1923 mad 505 .the facts in that case are, however, clearly distinguishable and it is seen from the judgment that the assets have not been realised by the court on the date when the applications had been made......that the learned district munsif has allowed the application filed by the respondent who is a decree-holder in o. s. 330 of 1970 on the file of the same district munsif court for rateable distribution under section 73 of the civil procedure code.2. the petitioner herein obtained a money decree in o. s. no. 370 of 1969 on 18-8-1969 and brought the property of the judgment-debtor for sale in execution and purchased the same on 15-6-1970 after having obtained leave from the executing court to bid and set off. the respondent obtained a money decree in his suit o. s. 330 of 1970 on 29-6-1970 after the sale had been concluded in favour of the petitioner herein but before confirmation.3. the only question for consideration in this petition is whether the respondent decree-holder in o. s......
Judgment:
ORDER

1. The decree-holder in O. S. No. 370 of 1969 on the file of the District Munsif Court, Palani, has filed this civil revision petition on being aggrieved that the learned District Munsif has allowed the application filed by the respondent who is a decree-holder in O. S. 330 of 1970 on the file of the same District Munsif Court for rateable distribution under Section 73 of the Civil Procedure Code.

2. The petitioner herein obtained a money decree in O. S. No. 370 of 1969 on 18-8-1969 and brought the property of the judgment-debtor for sale in execution and purchased the same on 15-6-1970 after having obtained leave from the executing court to bid and set off. The respondent obtained a money decree in his suit O. S. 330 of 1970 on 29-6-1970 after the sale had been concluded in favour of the petitioner herein but before confirmation.

3. The only question for consideration in this petition is whether the respondent decree-holder in O. S. 330 of 1970 who had obtained a decree on 29-6-1970 admittedly after the sale had been concluded in favour of the petitioner who had obtained leave to bid and set off, is entitled to claim rateable distribution.

Section 73 of the Civil Procedure Code clearly provides that the applicant-decree-holder for rateable distribution must file the application before the receipt of the assets by the executing court. The point for consideration is where the decree-holder had purchased the property in auction after having obtained permission to bid and set off, the court should be deemed to have received the assets on the date of the sale.

4. In Punnamchand v. Satyanandam AIR 1933 Mad 804, a Division Bench of this Court has answered the question in the affirmative and the learned Judges have observed that, when a decree-holder has been given permission to bid and set off, and when the amount of the successful bid is less than the decree amount the whole of the set off must be deemed as made on the date of sale and that the whole of the amount must be deemed to have been received or realised eo instante the sale is made and Section 73 will give no benefit to the other decree-holders who apply for rateable distribution after the conclusion of the sale however soon after its conclusion their applications may be made. I am bound by this decision.

5. In this case, the decree amount is Rs. 5,100 and the sale price is Rupees 5,000 and it necessarily follows that application by the respondent decree-holder for rateable distribution is not maintainable.

6. The executing court has in allowing the respondent's claim for rateable distribution purported to rely on a decision of a Full Bench in Nachiappa Chettiar v. Subbier. 44 MLJ 413 AIR 1923 Mad 505 . The facts in that case are, however, clearly distinguishable and it is seen from the judgment that the assets have not been realised by the court on the date when the applications had been made. In the suit filed by S an application for attachment before judgment of the goods was made and the sale proceeds were deposited into court towards the credit of the suit on 11-4-1917. In the meantime, another decree-holder N attached the money in court deposit before judgment and obtained a decree on 19-4-1917 and applied for payment on 7-6-1917. Meanwhile another decree-holder R obtained a decree on 29-6-1917. It was only thereafter that S obtained a decree on 2-7-1917 and applied for payment out on 3-7-1917. It is obvious that in that case the assets have not been realised by the court. The applications for rateable distribution have been made before such a realisation.

7. In the result the revision petition is allowed but under the circumstances without costs. The application filed by the respondent herein for rateable distribution is dismissed, but without costs.

8. Revision allowed.


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