Skip to content


A.L.A.R. Arunachellam Chettiar Vs. P.S.K. Haji Sheek Meera Rowthar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Judge
Reported in(1911)ILR34Mad25
AppellantA.L.A.R. Arunachellam Chettiar
RespondentP.S.K. Haji Sheek Meera Rowthar
Cases ReferredSewdut Boy v. Sree Canto Maity I.L.R.
Excerpt:
ratable distribution, application for, not considered to be application for execution - attachment before judgment is not application for execution--decree holder--no right to ratable distribution unless he has applied for execution. - .....were realised on various days up to the 1st of april. the second defendant applied for ratable 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 raise the question as to the second defendant's right to ratable distribution. we may aasume, notwithstanding the fact that the sale was held on the day previous to the date of the application for ratable 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 ratable distribution, as the moneys were, as a matter of fact, realised on various dates subsequent to the second defendant's application for ratable.....
Judgment:

1. The second 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 moveable properties which belonged to the ninth and tenth defendants were sold. The second 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 second defendant applied for ratable 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 raise the question as to the second defendant's right to ratable distribution. We may aasume, notwithstanding the fact that the sale was held on the day previous to the date of the application for ratable 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 ratable distribution, as the moneys were, as a matter of fact, realised on various dates subsequent to the second defendant's application for ratable distribution; see Ramanathan Chettiar v. Subramania Sastrial and five Ors. I.L.R. (1903) Mad. 129. But there is no authority for the view that a mere application for ratable 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 (1909) 11 Cal. L.J. 69. Section 230 of the Code provides for an application for execution and Section 235 specifies the form and contents of that application, The mere application for ratable 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 bo reattach the property in execution of the decree where it had been attached before judgment. Section 295 gives the right to ratable 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 'reattach' 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 reattachment 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 ratable distribution out of the proceeds as one who had applied for execution before realisation? We think the answer must be in the negative. The rights to ratable, 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 be 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 XI, Order 38 of the new Code, which amplifies the language of Section 490 by stating that an application for reattachment 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 presupposes an application for execution. Reliance was placed on the decision of Mr. Justice Abdur Rahim in Amara Veerayya v. Annamalai Chetty, Pichayya and Ors. I.L.R. (1908) Mad. 502. 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 oases 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 ratable 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. But 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 I.L.R. (1888) Bom. 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 ratable distribution, though he added he came to that conclusion with reluctance. The decision of Mr. Justice Woodroffe in Sewdut Boy v. Sree Canto Maity I.L.R. (1906) Cal. 639, 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 ratable 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 it with coats.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //