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Damodar Das Vs. Kashi Prosad Agarwalla (Khaitan) and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberCivil Revn. No. 1443 of 1955
Judge
Reported inAIR1956Cal112
ActsCode of Civil Procedure (CPC) , 1908 - Sections 60(1) and 73
AppellantDamodar Das
RespondentKashi Prosad Agarwalla (Khaitan) and ors.
Appellant AdvocateRadhika Lal Tarafdar, Adv.
Respondent AdvocateRadha Krishna Khetan, Adv. (for No. 1), ;Bhabesh Chandra Bose and ;Panchu Gopal Ganguly, Advs. (for No. 2)
Cases ReferredIndra Chand Bothra v. Ghaneshyam Missir
Excerpt:
- .....dated 30-3-1955 by which the learned judge rejected the petitioner's contention that the opposite party no. 2 radhakishan agarwalla was not entitled to rateable distribution oi certain assets held in court and that he having withdrawn his share was liable to refund the same.2. in money execution case no. 33 of 1953, the application of the petitioner to which i have just referred was filed. the holder of decree in that case was one kashi prasad agarwalla against the judgment debtor k. l. knight, opposite party no. 3. in money execution cases nos. 13 and 42 of 1954 the decree-holder was the petitioner damodar dass, while the opposite party no. 2 radhaklshan agarwalla was the holder of the decree in execution case no. 15 of 1954.3. on 27-4-1954 a sum of rs. 2,365/3/- was received.....
Judgment:
ORDER

Debabrata Mookerjee, J.

1. This is an application under Section 115, Civil P. C. for revision of an order of a Subordinate Judge of 24-Parganas dated 30-3-1955 by which the learned Judge rejected the petitioner's contention that the opposite party No. 2 Radhakishan Agarwalla was not entitled to rateable distribution oi certain assets held in Court and that he having withdrawn his share was liable to refund the same.

2. In Money Execution Case No. 33 of 1953, the application of the petitioner to which I have just referred was filed. The holder of decree in that case was one Kashi Prasad Agarwalla against the judgment debtor K. L. Knight, opposite party No. 3. In Money Execution Cases Nos. 13 and 42 of 1954 the decree-holder was the petitioner Damodar Dass, while the opposite party No. 2 Radhaklshan Agarwalla was the holder of the decree in Execution Case No. 15 of 1954.

3. On 27-4-1954 a sum of Rs. 2,365/3/- was received in Money Execution Case No. 33 of 1953. This amount, it appears, was distributed amongst the holders of different decrees in Money Execution Cases Nos. 33 of 1953 and 13 and 15 of 1954. Thereafter on behalf of the decree-holders another application for rateable distribution of Rs. 1,262/3/-then available for such distribution was filed.

It was then that the present petitioner Damodar Das preferred an objection that the opposite party Radhakishan Agarwalla was not entitled to participate in the assets.

4. The learned Judge considered the objections raised by the petitioner Damodar Das and negatived them. Thereafter the present Rule was obtained.

5. On behalf of the petitioner two points have been canvassed. In the first place it has been argued that the application for execution was made by opposite party No. 2 only on 30-4-1954. This, it is said, is evidenced by the relevant order of that date in the order-sheet of the Subordinate Judge's record. If that is the position, then of course, the application of the opposite party No. 2 could not possibly have been entertained in law inasmuch as the assets had been received in Court on 27-4-1954.

The learned Subordinate Judge appears to have considered the relevant aspect of the matter & held, in effect, that the application was in time, that is to say, it had been made before the assets were actually received in Court. It is to be observed that the application itself which is on the record bears date 27-4-1954, the date on which the assets were received. Furthermore on the Court-fee stamp affixed to the application, there is a Court Seal which aeain bears date, 27-4-1954.

The order passed on the 30th may have been passed later, and the text of the order itself does not indicate that it was made on the date the application was filed. In these circumstances I am not prepared to hold that the learned Subordinate Judee misdirected himself by holding that one of the essential conditions requisite for an application to succeed under the provisions of Section 73, Civil P. C. had been satisfied although the application was made subsequent to the receipt of assets.

Complaint is now made that there is no express finding reached by the learned Subordinate Judge on this aspect of the matter Inasmuch as no reference is made to the entry in the order-sheet under date 30-4-1954. I have not the slightest doubt that those materials were present to the mind of the court when it was actively exercised upon the question whether an essential condition on the fulfilment of which the applicability of Section 73, Civil P. C. depended, was considered.

It is indeed futile to argue that the Court below failed to address itself to the question which is now raised before me that the application for execution had not been made before the receipt of the assets by the Court. I must, therefore, hold that the essential condition of applicability of Section 73 was satisfied in this case. The only other question is whether the second ground of objection raised on behalf of the petitioner disentitles the opposite party No. 2 to participate in the assets.

6. The second ground raises a question of some importance. It is argued that Section 73 is controlled by the earlier provisions of Section 60, Civil P. C. The proviso to Clause (i) of Sub-section 1 of Section 60 says that when the salary of a servant of the Railway Company has continuously or intermittently for a total period of 24 months been under attachment, such salary shall be exempt from attachment until the expiry of a further period of 12 months and where the attachment is made in execution of the same decree, shall be finally exempt from attachment in execution of that decree.

It is argued that in view of the fact that the salary of the opposite party No. 3 had been under attachment for a continuous period of 24 months, it was not open to the opposite party No. 2 to avail himself of the assets lying in Court by an application for rateable distribution. It is said that what cannot be reached directly by reason of the prohibition contained in the proviso just referred to, cannot be reached indirectly by means of an application for rateable distribution. In other words, an application for rateable distribution is controlled by the earlier provision contained in Section 60 of the Code to which I have just referred.

7. In aid of this contention reference has been made to a decision of the Bombay High Court in the case of 'Himatmal Devchand v. Abdul Hakke' AIR 1945 Bom 76 (A). Kania, J., as he then was, held in the case that the real object of Section 73 was merely to prevent multiplicity of execution proceedings and to provide a cheap mode of execution by equitable distribution of money held by the Court amongst creditors holding decrees against the same debtor,

Section 73, the learned Judge held, did not give rights to decree-holders which they did not possess under the decree and consequently the provisions of that section cannot be pressed into service for the purpose of doing indirectly what cannot be done directly.

8. It is quite plain that the learned Judge considered that the provisions of Section 73 must be subordinated to considerations arising out of the proviso to Section 60 which I have read. As far as one can see, attachment is not always an essential step towards realisation. It may sometimes be a helpful and necessary step but where assets are lying in Court, it is not essential that there should be an attachment before satisfaction by means of rateable distribution.

The proviso to Clause (i) of Sub-section (1) of Section 60 merely inhibits in certain circumstances the oppressive and tormenting process of subjecting the same judgment-debtor to the process of the law at the instance of the identical decree-holder; ordinarily it gives him a respite. That seems to me to be the real purpose of the proviso. If any question arises as between the execution creditor and the judgment-debtor, it is always open to the judgment-debtor to plead the proviso in support of a claim that the decree is no longer executable or not executable at the moment by reason of the proviso.

This inhibition contained in the proviso cannot possibly, in my view, oe extended so as to be operative on the provisions contained in Section 73 which deal with an entirely different subject-matter relating to satisfaction of judgment debts without recourse being had to separate proceedings for satisfaction of such debts. The principle of Section 73, properly regarded, merely means that there is no necessity for separate proceedings amongst creditors holding decrees against the same debtor in different proceedings.

As I have said, the real object seems to be to prevent multiplicity of proceedings as between execution creditors and the judgment-debtor. It is not easy to see how the objection that could legitimately be raised on behalf of the judgment-debtor in accordance with the terms of the proviso to Sub-section (1) of Section 60 can possibly be availed of by an execution creditor to defeat the claim of another creditor.

9. I feel fortified in the view I take by a decision of this Court in the case of 'Indra Chand Bothra v. Ghaneshyam Missir' 9 Cal LJ 210 (B), in which a Division Bench observed what Section 73 requires is that a decree-holder who applies for rateable distribution must apply for execution of his decree to the Court by which the assets are held and that he must do so prior to the receipt of assets. The section does not say that such decree-holder must apply for attachment of the assets.

It is indeed by no means clear why Section 60 which is a section relating to attachment can at all be relied upon to defeat a claim under Section 73, Civil P C. It would have been different if attachment was an indispensable step in aid of an application for rateable distribution of assets. Since that is not so, I do not consider it right to tear Section 60 from its proper context and make it serve a purpose which it was never designed to serve.

In the case of 'Khariulla Khan & Agajan Khan firm v. Mirajankhan Khudaidakhan' AIR 1941 Nag 239 (C), Vivian Bose, J., as he then was, held that the proviso to Section 60 was after all intended to protect certain judgment-debtors and not to give one creditor priority over another agreeing with the Madras view that the intention of the Legislature in Section 73 was to afford every creditor equal opportunities of obtaining a rateable advantage In the available assets of the judgment-debtors; and unless there is something clear in the language of the provisions of the Code to exempt a payment from being applied to the benefit of all the creditors, the Courts should incline to the view that the monies in the hands of the Court should be shared by all the decree-holders rateably. The learned Judge clearly held that 8. 73 was not In any way controlled by the provisions of Section 60 Civil P. C. I respectfully agree.

10. In these circumstances I think it cannot be said that the learned subordinate Judge misdirected himself in rejecting the petitioner's application for an order directing the opposite party No. 2 to refund the money which he had received as his share as a result of his application for rateable distribution of the assets held by the Court.

11. It has been argued finally that in any event the question as to whether the application for execution had been made by opposite party No. 2 before the assets were received in Court, requires further Investigation. I do not agree. The application was beiore the Court and as I have pointed out that although a categorical finding might not have been reached by the Court below as respects the date of application, there cannot possibly be any doubt that the learned Judge held that the application was within time in the sense that it had been made before the receipt of assets by the Court. In these circumstances I think that the request for further investigation cannot be acceded to.

12. The result, therefore, is that this Rule is discharged with costs.


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