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Vadlamany Venkatesam (Deceased); and anr. Vs. Mangipudi Viswanadham and anr. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported inAIR1918Mad512; 42Ind.Cas.897
AppellantVadlamany Venkatesam (Deceased); and anr.
RespondentMangipudi Viswanadham and anr.
Cases Referred and Srinivasaiengs v. Kanthimathi Ammal
Excerpt:
civil procedure code (act v. of 1908), section 73 - rateable distribution of assets--decree against judgment--debtor as representative of his father--priority. - .....his father, and the amount payable under the decree was out of the assets of the 2nd respondent's deceased father in the hands of the 2nd respondent. the 1st respondent attached the property in 1913 and the appellant attached it in 1914. the property was sold in execution of the appellant's decree in 1914 and the money was brought into court. then both of them applied for payment of the money in satisfaction of their decrees. there can be no doubt that section 73 of the code of civil procedure applies to this case, as the 1st respondent's application for execution had been made before the assets were received by the court. the learned vakil for the 1st respondent supporting the order of the lower court contends that his client is entitled to priority in respect of the amount of his.....
Judgment:

1. The appellant had a decree against the 2nd respondent for money and the 1st respondent had also a decree against the 2nd respondent for money as legal representative of his father, and the amount payable under the decree was out of the assets of the 2nd respondent's deceased father in the hands of the 2nd respondent. The 1st respondent attached the property in 1913 and the appellant attached it in 1914. The property was sold in execution of the appellant's decree in 1914 and the money was brought into Court. Then both of them applied for payment of the money in satisfaction of their decrees. There can be no doubt that Section 73 of the Code of Civil Procedure applies to this case, as the 1st respondent's application for execution had been made before the assets were received by the Court. The learned Vakil for the 1st respondent supporting the order of the lower Court contends that his client is entitled to priority in respect of the amount of his decree, inasmuch as his decree was against the 2nd respondent as legal representative of his father and only to the extent of the assets of the deceased in his hands. The only question for consideration under Section 73 is whether the two decrees are against the same judgment-debtor, and that point is settled by this Court in the decision reported as Kaliappan Servaikaran v. Varadarajulu 3 Ind. Cas. 737 and Srinivasaiengs v. Kanthimathi Ammal 5 Ind. Cas. 917. The latter decision, though it was a judgment of a single Judge, has been confirmed in Letters Patent Appeal. The petition of the 1st respondent was put in under Section 73 and all that he can claim is what that section allows him. He would have no locus standi in these proceedings unless he wanted to avail himself of the provisions of this section. The learned Vakil for the 1st respondent, however, contends that under the Hindu Law, his client being a decree-holder with respect to the assets of the deceased, the property of the deceased in the hands of the 2nd respondent must, first of all, be applied in payment of the creditors of the deceased and it is only the balance that is available to the creditors of his heir. It is unnecessary for us to deal with that general question. We are only concerned with an application under Section 73 of the Code of Civil Procedure, and under that section the 1st respondent is not entitled to anything more than a rateable share of the money in Court. The decrees of both the lower Courts will be modified and the money in Court will be divided between the appellant and the 1st respondent in proportion to their decrees. Bach party will bear the costs of this appeal.


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