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A.L.A.R. Arunachellum Chettiar Vs. P.S.K. Haji Sheik Meera Rowther - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Judge
Reported in7Ind.Cas.856a
AppellantA.L.A.R. Arunachellum Chettiar
RespondentP.S.K. Haji Sheik Meera Rowther
Cases ReferredSewdut Roy v. Sree Canto Maity
Excerpt:
civil procedure code (act xiv of 1832), sections 295, 490 - rateable distribution--attachment before judgment--whether it is an application for the execution of the decree--application for rateable distribution--not an application for execution. - .....the proceeds were realised on various days up to the 1st of april. the 2nd defendant applied for rateable distribution on the 11th march 1905. his application having been allowed, the present suit is instituted by other decree-holders against the same judgment-debtor who raises the question as to the 2nd defendant's right to rateable distribution. we may assume notwithstanding the fact that the sale was held on the day previous to the date of the application for rateable distribution, if that application could be regarded as an application for execution within the meaning of section 295, that it would entitle the applicant to rateable distribution as the moneys were, as a matter of fact, realised on various dates subsequent to the 2nd defendant's application for rateable distribution;.....
Judgment:

1. The 2nd defendant who is the appellant before us claims ratable distribution out of moneys realised in execution of the decree in Original Suit No. 681 of 1904 on the file of the District Munsif of Tinnevelly. In execution of that decree certain movable properties which belonged to the 9th and 10th defendants were sold. The 2nd defendant who had instituted Original Suit No. 701 of 1904 attached the same properties before judgment. The sale was held on the 10th March 1905, but the proceeds were realised on various days up to the 1st of April. The 2nd defendant applied for rateable distribution on the 11th March 1905. His application having been allowed, the present suit is instituted by other decree-holders against the same judgment-debtor who raises the question as to the 2nd defendant's right to rateable distribution. We may assume notwithstanding the fact that the sale was held on the day previous to the date of the application for rateable distribution, if that application could be regarded as an application for execution within the meaning of Section 295, that it would entitle the applicant to rateable distribution as the moneys were, as a matter of fact, realised on various dates subsequent to the 2nd defendant's application for rateable distribution; [See Ramanathan Chettiar v. Subramania Sastrial 26 M. 179.]. But there is no authority for the view that a mere application for rateable distribution is an application for execution as contemplated by Section 295. On the other hand, it has been held that it is not; see Ramjus Agarwala v. Guru Charan Sen 11 CRI.L.J. 69; 3 Ind. Cas. 105. Section 280 of the Code provides for an application for execution and Section 235 specifies the form and contents of that application. The mere application for rateable distribution, therefore, which does not comply with the requirements of Section 235 in form or substance, cannot be treated as the sort of application for execution falling within the scope of Section 295.

2. It is next argued that the attachment before judgment pre-supposes an application for execution because Section 490 of the Code provides that it shall not be necessary to reattach the property in execution of the decree where it had been attached before judgment. Section 295 gives the right to rateable distribution only to those who have prior to the realisation applied for execution of decrees for money against the same judgment-debtor. An attachment before judgment of certain property is in no sense an application for execution. It is impossible without specific language justifying it to create a fiction that an attachment before judgment is equivalent to an application for execution of a decree. Section 490 which gives validity and effect to the attachment before judgment even after decree for certain purposes does not give rise to the implication that that attachment was made on a constructive application for execution of a decree that had not been passed. There is no magic in the word re-attach to be found in Section 490. The attachment before judgment is a fact. It does not die with the decree and all that the section provides is that when there is a subsisting attachment it is unnecessary to make a second attachment. The section does not make the application to execute the decree a second application to execute it because it says re-attachment is unnecessary. Suppose other property of the judgment-debtor is sold and the proceeds realised can the decree-holder, who has attached before judgment a different property, claim rateable distribution out of the proceeds as one who had applied for execution before realisation? We think the answer must be in the negative. The right to reteable distribution is conferred upon every decree-holder who has applied for execution whether the relief claimed by him is the arrest of the judgment-debtor or the attachment and sale of any property or the sale of property already attached before judgment. We find no warrant for supposing that such a right is conferred upon a plaintiff who has not applied for execution but has merely obtained an attachment before judgment. The subsisting attachment before judgment has its use in invalidating-alienations by the judgment-debtor and dispensing with the need of a further attachment before sale without necessitating the fiction after a decree is passed that there was a pre-existing application for execution. Rule 11, Order XXXVIII of the New Code, which amplifies the language of Section 490 by stating that an application for re-attachment of the property shall not be necessary upon an application for execution, appears to us to render manifest the intention of the legislature even under the old Code as regards the necessity for an. application for execution even though the property had been attached before judgment. We must, therefore, regard Section 490 as in no way giving countenance to the view that an attachment before judgment pre-supposes an application for execution. Reliance was placed on the decision of Mr. Justice Abdur Rahim in Amara Veemyya v. Annariiala Chetty Pichayya 31 M. 502 : 4 M.L.T. 348. If the foregoing reasoning be correct, it follows, that we are unable to accept that decision as sound. The learned Judge appears to have been impressed with the view that but for the conclusion he arrived at, ''a large class of cases would, for no apparent valid reason, be excluded from the application of the very equitable provisions of Section 295.' To our minds this does not appear to be a cogent argument, for Section 295 gives the right to rateable distribution only to decree-holders who have applied for execution. We cannot on any ground of equity include within that language persons who have only applied for attachment before judgment. This may be a technical view. Bat we think we are bound to construe the Code according to its language. The decision of Mr. Justice Scott in Pallonji Shapurji Mistry v. Edward Vaughan Jordan 12 B. 400 seems to us to be exactly in point and his reasoning altogether commends itself to us. He held that by attachment before judgment, the attaching creditor did not qualify himself for rateable distribution though he added he came to that conclusion with reluctance. The decision of Mr. Justice Wood-roffe in Sewdut Roy v. Sree Canto Maity 33 C. 639 : 10 C.W.N. 634 proceeds on reasoning which supports our conclusion. By the consent of the rival decree-holder which is more than once referred to in the judgment, the learned Judge allowed rateable distribution to the creditor who attached and had also the property sold, it being perishable before judgment. But he expressly points out that the attachment was not in execution and that the sale-proceeds were not realised in execution, so that Section 295 itself had no application. For the reasons we have already given, we must hold that the second appeal fails and we dismiss the same with costs.


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