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Deboki Nundun Sen Vs. Hart and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1885)ILR12Cal294
AppellantDeboki Nundun Sen
RespondentHart and ors.
Cases ReferredShumbhoo Nath Poddar v. Luckynath Dey I.L.R.
Excerpt:
civil procedure code (act xiv of 1882), section 295 - rateable distribution of sale proceeds--same judgment-debtor--sale in execution of decree--execution proceedings. - .....the defendants in equal shares. the defendants tara prosunno mookerjee and srikristo biswas also held decrees against the defendants hurish chunder ghose and brojendrabala dasi. the defendant hart drew the proceeds of the sale in execution of his decree out of court, the claims of the other judgment-creditors to share rateably being disallowed by the execution court. the plaintiff then instituted the present suit under the penultimate clause of section 295 of the civil procedure code for the refund and rateable distribution of the assets realized in execution of hart's decree. the munsif, on the authority of shumbhoo nath poddar v. luckynath dey i.l.r. 9 cal. 920 gave the plaintiff a decree. on appeal the district judge, relying on an unreported case (rule no. 774 of 1884), decided by.....
Judgment:

Tottenham and Agnew, JJ.

1. In this case it appears that the plaintiff's father obtained a decree against the defendant Hurish Chunder Ghose. The defendant Hart obtained a decree against the defendant Hurish Chunder Ghose and the defendant Brojendrabala Dasi, the widow and representative of the late Punchanun Ghose, and in execution of his decree sold certain property which belonged to the defendants in equal shares. The defendants Tara Prosunno Mookerjee and Srikristo Biswas also held decrees against the defendants Hurish Chunder Ghose and Brojendrabala Dasi. The defendant Hart drew the proceeds of the sale in execution of his decree out of Court, the claims of the other judgment-creditors to share rateably being disallowed by the execution Court. The plaintiff then instituted the present suit under the penultimate clause of Section 295 of the Civil Procedure Code for the refund and rateable distribution of the assets realized in execution of Hart's decree. The Munsif, on the authority of Shumbhoo Nath Poddar v. Luckynath Dey I.L.R. 9 Cal. 920 gave the plaintiff a decree. On appeal the District Judge, relying on an unreported case (Rule No. 774 of 1884), decided by Prinsep and Macpherson, JJ., held that the decrees were not against the same judgment-debtor within the meaning of Section 295 of the Civil Procedure Code and dismissed the suit. The plaintiff has appealed, and contends that his decree is against the same judgment-debtor as in the cases of the defendants Hart, Tara Prosunno and Srikristo, although in the cases of these defendants there is an additional judgment-debtor.

2. The words of Section 295 are: 'Whenever assets are realized by sale or otherwise in execution of a decree, and more persons than one have, prior to the realization, applied to the Court by which such assets are held for execution of deorees against the same judgment-debtor, and have not obtained satisfaction thereof, the assets, after deducting the costs of the realization, shall be divided rateably among all such persons.' In the case of Shumbhoo Nath Poddar v. Luckynath Dey I.L.R. 9 Cal. 920 decided by Garth, C.J., and Mitter, J., it was held that where property belonging to one judgment-debtor had been attached and sold, a person who held a decree against that judgment-debtor and another person was entitled to come in and share rateably with the first attaching creditor in the proceeds of the sale. In the unreported case the facts were precisely the same as in the present case. The Court said: 'Section 295 requires that the assets under distribution should be held for execution of decrees against the same judgment-debtor in order to enable the holder of a decree other than that actually executed to participate in them. Consequently, as in the present case there are in one decree judgment-debtors, who are no parties in the other decree, the holder of the latter decree cannot reap the benefit of Section 295.'

3. In the present case there is no difficulty in ascertaining the shares of the defendants Hurish Chunder and Brojendrabala. But we do not think a Court executing a decree has power to ascertain the shares of the judgment-debtors. In some cases it would be impossible to ascertain the shares of joint judgment-debtors without an inquiry and accounts, and a partition on winding up might be necessary. Such matters as these could not be inquired into in execution proceedings, but a regular suit would be necessary. And if an execution Court has no jurisdiction to ascertain the shares of joint judgment-debtors when the execution is complicated and involves inquiries, it cannot have jurisdiction merely because the question is a simple one. Nor could the shares be ascertained in such a suit as this which is simply for the refund and rateable distribution of assets alleged to have been paid to a person not entitled to receive them.

4. These conditions do not apply to such a case as that of Shumbhoo Nath Poddar v. Luckynath Dey I.L.R. 9 Cal. 920 where it was not necessary to enter into any question as to shares. And we have the authority of Mitter, J., for saying that the Court did not intend in that case to decide that a person who has obtained a decree for money against a single judgment-debtor is entitled to come in and share rateably with a person who has obtained a decree against the same judgment-debtor and other persons.

5. We think, therefore, that the plaintiff is not entitled to share rateably in the assets realized by the defendant Hart in execution of his decree.

6. The appeal is dismissed with costs.


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