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Sm. Hemlata Dasi Vs. Bengal Coal Co. Ltd. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1935Cal738,159Ind.Cas.575,160Ind.Cas.1080
AppellantSm. Hemlata Dasi
RespondentBengal Coal Co. Ltd.
Cases Referred and Jaharlal v. Lalita Sundari
Excerpt:
- .....and purchased by the opposite party. in the meantime the petitioner applied for execution of the decree obtained by him in the same court and applied for rateable distribution of the sale proceeds under section 73, civil p.c. the learned subordinate judge rejected the petitioner's prayer on the ground that the decree obtained by him was against the sons of rasaraj while the decree obtained by the opposite party was against rasaraj and consequently the decree of the petitioner was not against the same judgment-debtor. the petitioner thereupon obtained the present rule. now in order to attract the provision of section 73 the decree should be against the same judgment-debtor. a judgment-debtor is a person against whom a decree has been passed (section 2, clause 10, civil p. c). the decree.....
Judgment:

Nasim Ali, J.

1. The facts which give rise to this rule are as follows: One Rasaraj Biswas and his wife Promodini borrowed a certain amount of money from the petitioner on mortgage of some properties belonging to them on 23rd May 1923. Thereafter Rasaraj died. The petitioner obtained a mortgage-decree against the sons of Rasarai and Promodini Dasi on the basis of the said mortgage in the Court of the Subordinate Judge at Alipur. In execution of the said decree the mortgaged properties were sold. The sale proceeds, however, not being sufficient to cover the decretal amount, the petitioner obtained a money decree under Order 34, Rule 6, Civil P.C., for the balance of the decretal amount, viz. Rs. 10,221-15-9 on 11th February 193l against Promodini and the sons of Rasaraj.

2. The opposite party obtained a money decree for Rs. 31,405-6-9 against Rasaraj during his life-time and certain other persons in the Court of the Subordinate Judge at Hazaribagh and applied for execution of the said decree after the death of Rasaraj against his sons in the Court of the Subordinate Judge at Bankura by attachment and sale of certain properties belonging to Rasaraj. The attached properties were thereafter sold in execution and purchased by the opposite party. In the meantime the petitioner applied for execution of the decree obtained by him in the same Court and applied for rateable distribution of the sale proceeds under Section 73, Civil P.C. The learned Subordinate Judge rejected the petitioner's prayer on the ground that the decree obtained by him was against the sons of Rasaraj while the decree obtained by the opposite party was against Rasaraj and consequently the decree of the petitioner was not against the same judgment-debtor. The petitioner thereupon obtained the present rule. Now in order to attract the provision of Section 73 the decree should be against the same judgment-debtor. A judgment-debtor is a person against whom a decree has been passed (Section 2, Clause 10, Civil P. C). The decree obtained by the opposite party was against Rasaraj, whilst the decree obtained by the petitioner is against the sons of Rasaraj. The two decrees therefore were not passed against the same person.

3. The view taken by the learned Subordinate Judge is supported by the decisions in Govind Abaji v. Mohoniraj Vinayak (1901) 25 Bom 494, Srinivasa Aiyangar v. Kanthimathi Ammal (1910) 23 Mad 465, Balmer Lawrie & Co. v. Jadunath Banerjee, 1915 Cal 658 and Jaharlal v. Lalita Sundari, 1930 Cal 454. Section 146, Civil P.C., is not of any assistance to the petitioner. Section 73, Civil P.C., permits rateable distribution only when the decrees are against the same judgment-debtor. Section 146 cannot enlarge the scope of S, 73 as it is expressly made subject to the other provisions of the Code. By reason of Section 146 the words 'passed against the same judgment-debtor' in Section 73 cannot be read as 'passed against the same judgment-debtor or the legal representatives of the same judgment-debtor.' An executing Court cannot go behind the decree and by invoking Section 146 it cannot change a decree passed against Rasaraj into a decree against his legal representatives. For purposes of rateable distribution the executing Court must take the decrees as they are. The learned Judge was therefore right in rejecting the petitioner's prayer for rateable distribution. The rule is accordingly discharged with costs. Hearing fee one gold mohur.

Henderson, J.

4. I agree.


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