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Arunachellam Chetty Vs. Somasundaram Chetty, by His Agent, K.V. Lakshamana Aiyer - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in59Ind.Cas.86
AppellantArunachellam Chetty
RespondentSomasundaram Chetty, by His Agent, K.V. Lakshamana Aiyer
Cases ReferredBijoy Kumar Addya v. Rama Nath Barman
Excerpt:
civil procedure code (act v of 1908), section 73, order xxi, rule 72 - rival decree-holders--rateable distribution--permission to bid and to set off-right of other decree-holders, whether affected. - .....1918. apparently, the counter petitioner did not deposit the money. petitioner applied for rateable distribution on 29th august 1918. the lower court has held that the petitioner is not entitled to rateable distribution in respect of the purchase money payable by the counter-petitioner. i think he is wrong. under order xxi, rule 72 permission to bid and to set off are made subject to the rights of decree-holders under section 73. there is nothing before me to show that the permission in the present case was of a different character. in my opinion, the permission to set off does not affect the right of a rival decree holder to rateable distribution. see also bijoy kumar addya v. rama nath barman 43 ind. cas. 715.2. the judgment of the district munsif, in so far as it disallows.....
Judgment:

Seshagiri Aiyar, J.

1. Petitioner and the counter-petitioner had decrees against a common-judgment debtor. Permission was granted by the Court to the counter petitioner to bid at the auction and to set off his claim under the decree against the purchase-money. In pursuance of the permission, counter petitioner purchased, on 28th August 1918, one item of the judgment-debtor's property. On the same date another property was sold to a stranger and he deposited the money on 10th September 1918. Apparently, the counter petitioner did not deposit the money. Petitioner applied for rateable distribution on 29th August 1918. The lower Court has held that the petitioner is not entitled to rateable distribution in respect of the purchase money payable by the counter-petitioner. I think he is wrong. Under Order XXI, Rule 72 permission to bid and to set off are made subject to the rights of decree-holders under Section 73. There is nothing before me to show that the permission in the present case was of a different character. In my opinion, the permission to set off does not affect the right of a rival decree holder to rateable distribution. See also Bijoy Kumar Addya v. Rama Nath Barman 43 Ind. Cas. 715.

2. The judgment of the District Munsif, in so far as it disallows rateable distribution, is reversed and the case remitted to him for fresh disposal in the light of the above observations. Costs will abide the result.


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