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Shumbhoo Nath Poddar Vs. Luckynath Dey and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1883)ILR9Cal920
AppellantShumbhoo Nath Poddar
RespondentLuckynath Dey and ors.
Cases ReferredHury Dayal Guho v. Din Doyal Guho
Excerpt:
sale in execution of decree - civil procedure code (act x of 1877), section 205--rateable distribution amongst decree-holders. - .....suppose that there were one decree against a, and another decree against a and b, and that the decree-holders in both cases had applied for execution against a, but that execution had been taken out and assets realized in one case only, would the decree-holders under both decrees be entitled to a rateable share of the assets; or, in other worlds, is that a case which would come within section 295? i think that this question should be answered in the affirmative. it is clear that, as a matter of justice, the decree-holder in the one case has as much right to take out execution against a, as the decree-holder in the other case; and the evident object of the legislature is to prevent any one decree-holder obtaining an undue advantage over another, when they have both applied for and are.....
Judgment:

Richard Garth, C.J.

1. This was a Letters Patent Appeal from a decision of Mr. Justice Field, confirming the judgments of both the lower Courts. The question depends upon what is the proper construction to be put upon Section 295 of the Civil Procedure Code.

2. The appeal was heard some time ago; but it stood over for a time, until Mr. Justice Field and myself had decided a case (second appeal No. 211 of 1882) which was supposed to involve a somewhat similar question under Section 246 of the Code.

3. That case has now been decided Hury Dayal Guho v. Din Doyal Guho ante p. 479 but the decision will not much assist us in the solution of the present question, which is this: whether, when assets have been 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 decrees for money against the same judgment-debtor, the assets are to be divided among such persons, although the decrees under which they claim may not have been obtained against the same person.

4. To put the question, as it was put by Mr. Justice Field in the Court below: Suppose that there were one decree against A, and another decree against A and B, and that the decree-holders in both cases had applied for execution against A, but that execution had been taken out and assets realized in one case only, would the decree-holders under both decrees be entitled to a rateable share of the assets; or, in other worlds, is that a case which would come within Section 295? I think that this question should be answered in the affirmative. It is clear that, as a matter of justice, the decree-holder in the one case has as much right to take out execution against A, as the decree-holder in the other case; and the evident object of the Legislature is to prevent any one decree-holder obtaining an undue advantage over another, when they have both applied for and are both entitled to execution against the same person.

5. It cannot matter under such circumstances that one decree-holder has a right to proceed against other judgment-debtors, and that the other decree-holder has not. So long as execution may be taken out by both against one and the same judgment-debtor, it cannot signify against what other judgment-debtors the decrees may have been obtained.

6. I think, therefore, that the judgments of the Court below should be reversed, and that the plaintiff should be declared entitled to a rateable division of the sale proceeds with the defendants. The plaintiff will have his costs in all the Curts.

Mitter, J.

7. I am also of the same opinion.

8. There cannot be the slightest doubt, that the governing intention of the Legislature in Section 295 is that there should be an equitable distribution of the assets realized by the sale of a judgment-debtor's property, amongst such of his judgment-creditors as have been diligent enough to apply for execution against him before the realization.

9. The present case falls within this intention, but the lower Courts are of opinion that it does not come within the language used by the Legislature; they think that the words 'the same judgment-debtors' are governed by the word 'decrees,' and that therefore all the judgment-debtors must be common in all the decrees. But that this is not the correct construction of the section appears from the fourth Clause of its last proviso. There can be no question that the fourth Clause covers all cases of the sale of immovable property which are covered by the main portion of the section. The word 'same' does not occur here, and it is evident that the words 'the judgment-debtors' here refer to the judgment-debtor whose immovable property has been sold in execution of a decree. Similarly the words 'the same judgment-debtor' in the first portion of the section refer to the judgment-debtor or the judgment-debtors, whose property has been sold in execution of a decree.


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