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Pannalal Sen Vs. Lakshmisona Pyne and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberCivil Suit No. 171 of 1946
Judge
Reported inAIR1952Cal840,56CWN597
ActsCode of Civil Procedure (CPC) , 1908 - Section 73 - Order 21, Rule 89; ;Procedural Law
AppellantPannalal Sen
RespondentLakshmisona Pyne and ors.
Appellant AdvocateS. Brahmachari, Adv.
Respondent AdvocateB.S. Bagchi and ; P.C. De, Advs.
Cases ReferredRoshunlal v. Ramlal Mullick
Excerpt:
- orderp.b. mukharji, j.1. this application requires determination of the question whether deposit of money in court under order 21, rule 89, civil p.c., is liable to rateable distribution tinder section 73 of that code.2. the summons was taken out by the plaintiff-decree-holder for an order that the sheriff of calcutta do pay to him the sum of rs. 8,193-13-0 less the commission and other expenses payable to the accountant-general towards pro tanto satisfaction of his claim under the decree.3. the facts may be very briefly stated.4. this decree was made in favour of the applicant, on 19-5-1947, ordering the defendants to pay to the plaintiff the sum of rs. 6,500/- with interest at 6 per cent. per annum from the date of the decree until realisation, and also the costs of the plaintiff to be.....
Judgment:
ORDER

P.B. Mukharji, J.

1. This application requires determination of the question whether deposit of money in Court under Order 21, Rule 89, Civil P.C., is liable to rateable distribution tinder section 73 of that Code.

2. The summons was taken out by the plaintiff-decree-holder for an order that the Sheriff of Calcutta do pay to him the sum of Rs. 8,193-13-0 less the commission and other expenses payable to the Accountant-General towards pro tanto satisfaction of his claim under the decree.

3. The facts may be very briefly stated.

4. This decree was made in favour of the applicant, on 19-5-1947, ordering the defendants to pay to the plaintiff the sum of Rs. 6,500/- with interest at 6 per cent. per annum from the date of the decree until realisation, and also the costs of the plaintiff to be taxed by the Taxing Officer of this Court, with interest at the same rate until realisation. The applicant obtained on 11-2-1948, an order for attachment of premises No. 7, Taltola Lane, Calcutta and, in fact, attached the said premises in pursuance thereof. On 30-6-1948, the applicant obtained an order for sale of the said premises and such premises were sold by public auction on 14-3-1951, and purchased by one-Krishna Hari Bose for a sum of Rs. 17,500/-. The judgment-debtors then made an application on 12-4-1951, to set aside the sale and for leave to deposit the money required under Order 21, Rule 89, Civil P. C. The required deposit under Order 21, Rule 89, of the Code was made by the judgment-debtors. On 4-9-1951, the sale was set aside and leave was granted to the plaintiff to apply to this-Court for payment of the decretal amount.

The present application of the decree-holder now is that after deduction of the Sheriff's poundage and other charges, the sum of Rs. 8,193-13-0 which is still lying with the Sheriff to the credits of this suit may be paid to him less the commission and other expenses payable to the Accountant-General towards the pro tanto satisfaction of his decree.

5. The Sheriff's certificate annexed to the petition in support of the summons discloses the claims of certain other decree-holders against the same judgment-debtors. Two such decree-holders have appeared on this summons. One is Jyotsna De, an attaching creditor who however has not objected to the order asked for in terms of the summons. But there is another attaching creditor in Suit No. 2202 of 1948 intituled Bhuson Kumar Sen & Ors. v. Laxmisona Pyne & Ors. On behalf of the attaching creditors in the Suit No. 2202 of 1948 Anil Kumar Sen, one, of the plaintiffs-decree-holders therein, has affirmed an affidavit in opposition to the summons. His case is that he along with other plaintiffs in that suit obtained a money decree for Rs. 5,362/- on 31-3-1949. with interim interest, interest on judgment, and costs. He says further that the said decree in that suit was executed and attachment was levied on the same premises No. 7, Taltola Lane, Calcutta. No further proceedings, however, were taken in that suit, for sale, in view of the proceedings taken already by the plaintiffs in this suit. It is, therefore, his case that the attachment levied in execution of the decree in his suit is still subsisting, and he claims rateable distribution out of the funds in the hands of the Sheriff standing to the credit of this suit.

6. The short point raised on this summons is one of law and of very controversial nature. It involves the interpretation of some provisions of the Civil P. C. The point for determination is whether the money deposited under Order 21, Rule 89, of the Civil P. C. is subject to rateable distribution under section 73 of that Code.

7. A good many authorities have been shown to me both in support of as well as against rateable distribution of such funds in the hands of the Sheriff. When authorities are divided, I venture to put forward my own interpretation and reasons for my conclusion first and then deal with the authorities later as being the best course to avoid confusion.

8. The controversy is presented as a conflict between section 73, Civil P. C. and Order 21, Rule 89 of the same Code.

9. Section 73 of the Code deals with distribution of assets held by a Court among the competing creditors against the same judgment-debtor. It provides inter alia as follows:

'Where assets are held by a Court and more persons than one have before the receipt of such assets made application to the Court for the execution of decrees for the payment of money passed against the same judgment-debtor and have not obtained satisfaction thereof, the assets, after deduction, the costs of realisation shall be rateably distributed among all such persons.'

10. It is plain from a reading of this Rule that the subject-matter for rateable distribution is asset held by the Court. It has been held that a fund in the hands of the Sheriff is an asset held by the Court. I have no quarrel with that proposition for the moment. I will assume for the purposes of this application that proposition to be a sound one, without expressing my own view on the point. This would prima facie support The contention of the attaching creditor who is objecting to this summons.

11. But there are other considerations which demand attention.

12. Order 21, Rule89, Civil P. C. provides inter alia:

'(1) Where immoveable property has been sold in execution of a decree, any person, either owning such property or holding an interest therein by virtue of a title-acquired before such sale, may apply to have the sale set aside on his depositing in Court,-

(a) for payment to the purchaser a sum equal to five per cent of the purchase money, and

(b) for payment to the decree-holder, the amount specified in the proclamation of sale as that for the recovery of which the sale was ordered, less any amount which may, since the date of such proclamation of sale have been received by the decree-holder.'

13. On a consideration of the provisions in this Rule, it appears to me that payment to Court to set aside the sale contemplated in Order 21, Rule 89 is a payment for a specific purpose where the statute appropriates and ear-marks distinct payment for distinct objects. In other words, the purchaser gets a sum equal to five per cent. of the purchase money as a solatium for the sale that is set aside depriving such purchaser for no fault of his, from the benefit of such sale which he otherwise would have obtained. Then the Statute provides for the payment to the decree-holder the amount specified in the proclamation of sale for the recovery of which the sale was ordered. Deposit in Court| tinder Order 21, Rule 89 is taken by the Court, expressly for these two specified objects. To read other objects and to imply other purposes, be they of rateable distribution or any other purchase, is to-defeat the express provision of the Rule.

14. My own view on a construction and reading of this special Rule in Order 21, Rule 89 in the Code-is that this particular, money which is deposited in Court to set aside the sale can only be utilised for the two express payments, one of five per cent, to the purchaser and the other to the decree-holder for his dues, and not for making any other payment which will be involved in rateable distribution among other decree-holders.

15. I construe the words 'the decree-holder' in Order 21, Rule 89 (1) (b) to mean that particular decree-holder at whose instance the property was put up for sale. The words 'the decree-holder'' do not mean all decree-holders in general. The argument that the singular includes the plural is unavailing here because of the subsequent qualifying words that specify the decree-holder being the one to whom payment is to be made of the 'amount specified in the proclamation of sale as that for the recovery of which the sale was ordered.' These qualifying words in 0. 21, Rule 89 (1) (b) leave no room for the participation of other decree-holders in that amount for rateable distribution. In the face of this language to permit other decree-holders to claim rateable distribution of the part of the deposit in Court under Order 21, Rule 89 (1) (b) will be to violate the statute. The statute in Order 21, Rule 89 (1) (b) expressly ear-marks the payment thereunder to the decree-holder at whose instance the sale was ordered. To say in that context that other decree-holders and attaching creditors should have the right to rateable distribution in that fund is to wholly nullify the provision of Order 21, Rule 89. The entire amount in Order 21, Rule 89 in my view can be applied and paid only on the terms and conditions and in the manner laid down there.

16. It is apparent in the Civil P. C. that where the decree-holder is intended to include also those who are entitled to rateable distribution, express mention is made of them in addition to the decree-holder. This will be clear from Order 21, Rule 90, the rule which immediately follows Order 21, Rule 89 and which uses the expression 'the decree-holder or any person entitled to share in a rateable distribution.' That would have been unnecessary if the words 'the decree-holder' would have included persons entitled to rateable distribution under section 73. There is again in Order 21, Rule 72 of the Code, where the decree-holder himself purchases the property, the express declaration that his right of setting off this purchase money against his decree is subject to rateable distribution under section 73 of the Code. The same result is produced by the first proviso to Order 21, Rule 83 (2) by express reference to B. 72. But that is not so under Order 21, Rule 89 where all reference to 3. 73 is omitted. Regard being had to express reference to section 73 in some of the rules in Order 21 preceding and immediately following Order 21, B.> 89, this omission in Order 21, B. 89 of any reference to section 73 appears to me to be deliberate. As I understand the law of execution contained in the Code, it appears to me that the general rule of rateable distribution under section 73 of the Code is to be read and applied subject to such exceptions as are expressly made in special provisions such as Order 21, Rule 89.

17. While interpreting Order 21, Rule 89, another consideration appears to be of some significance. Pushed to its logical conclusion the contention that the fund under Order 21, Rule 89 is liable to rateable distribution, will mean that even that five per cent solatium to the purchaser under Order 21, Rule 89 (1) (a) must be treated as asset in Court within the meaning of section 73 and rateably distributed among other attaching creditors. Nothing in my view would be more unfair to an innocent purchaser. Nothing would be more calculated to make sales under Order 21, Rule 89 unattractive. No purchaser would normally think of taking all the trouble of bringing out his good money, bidding and purchasing at the court sale and then deposit his money in Court, only later to be told that the sale to him has been set aside through no fault on his part and that he would be deprived of the benefit of his purchase without any recompense to him. The scheme under the Code has to be understood in order to realise what this means. On a sale the purchaser has to deposit 2 percent. of the purchase money immediately under Order 21, Rule 84 (1) and the balance of 75 per cent, within 15 days under Order 21, Rule 85. When his purchase is set aside under Rule 92, he is entitled to refund of his money either with or without interest according to Court's discretion under Rule 93. But that is in addition to his express solatium of five per cent under Rule 89 (1) (a). The statute computed his compensation at five per cent. of purchase money under Rule 89 (1) (a). See in this connection the observations of Sir George Lowndes in the Privy Council in Nanhelal v. Umrao Singh, 58 Ind. App. 50 at p. 56.

I fail to understand how this statutory compensation intended for the purchaser and no part of which is at all for the decree-holder at whose instance the sale was ordered, be taken away in the teeth of the statute for rateable distribution among other decree-holders. I can understand the principle which tries to hold the balance equally among decree-holders by the principle of rateable distribution of the assets in Court as against the same judgment-debtor and that is why it is expressly provided that in the case where the decree-holder himself is the purchaser his right of set-off under Order 21, Rule 72 is subject to rateable distribution. But it will be insensible to introduce the principle of rateable distribution between persons who are not decree-holders at all.

To get rid of this impossible situation, it is argued that only that part of the deposit under Order 21, Rule 89 (1) (b) which is intended for the decree-holder should be seized for rateable distribution and that the other part of the deposit under Order 21, Rule 89 (1) (a) intended for the purchaser should be exempt from such rateable distribution. I am unable to adopt that stratagem in construction because the whole of the deposit under 0. 21, Rule 89 is obviously 'assets' held by the Court, and I can find no principle of law and reason which justifies making a distinction between portions of such asset. I am of the view that either the whole amount under Order 21, Rule 89 is liable to rateable distribution or not at all. I am also of the view that no part of that amount is liable to such rateable distribution. If I have expressed myself on this point at length, it is because of a decision of the Patna High Court to which I shall refer later in this judgment.

18. Section 121 of the Code lays down that the rules of Sch. I shall have effect as if enacted in the body of the Code until annulled or altered in accordance with the provisions in Part X of the Code. Provisions regarding such annulment or alteration are contained in Sections 122-131. Therefore, 0. 21, B. 89 of the Code in Sch. I subject to provisions for annulment or alteration, is to be treated as enected in the body of the Code just as much as section 73 of the Code. The proper interpretation will, therefore, be a construction of section 73 and Order 21, Rule 89 in a manner reconciled and not contradictory to each other. That means section 73 is to be read subject to the express provisions of Order 21, Rule 89. The interpretation which ensures justice to all concerned not merely to decree-holders but also to purchasers is to read that assets in Court are subject to rateable distribution as provided in section 73 of the Code except, in those cases where the Code itself expressly provides for a different distribution.

19. In a statute like the Civil Procedure Code with its large number of sections, with its numerous orders and still more numerous rules thereunder, it is of great importance to see that, if possible, a construction of a particular section is not so made as to be in conflict with other specific sections, rules or orders but, if possible, a construction is to be preferred which reconciles the different sections, orders and rules without doing violence to express provisions. This approach to construction is essential in every Statute and specially in the case of the Civil Procedure Code or else, it will be full of sections, rules and orders which will be self-contradictory.

20. The argument that such a construction that I am adopting in this case will impose hardship upon other creditors is, in my opinion, entirely misconceived. In the first instance, a diligent decree-holder is, subject of course to any express legal limitation, entitled to the fruits of his diligence in execution. To reward diligence in law, as in life, is not inherently an unjust principle. In the second instance, when the sale is set aside the attachment of other creditor continues and still holds good so that there is nothing to prevent such other attaching creditor from bringing the property to a fresh sale under such attachment. There is therefore no hardship at all in my opinion in the construction and the view that I am adopting.

21. Therefore, on the reasons stated before I hold that money deposited in Court under Order 21, Rule 89, Civil P. C. is not subject to rateable distribution under section 73 of that Code.

22. Now for the authorities on the point.

23. In a recent decision in Civil Revisional Jurisdiction of a Bench of this Court consisting of section K. Ghosh, and Edgley JJ. in Ghittagong Urban Co-operative Bank Ltd. v. Indo Burma Trades Bank Ltd., 42 Cal. W. N. 840, Edgley J. delivering judgment observed at p. 841 as follows :

'The expression 'assets' in section 73 of the Code clearly includes assets held by the Court, the ultimate purpose of which is to satisfy decrees outstanding against a judgment-debtor. The source from which such assets originated appears to be immaterial provided they are in the custody of the Court.'

24. With utmost respect to the learned Judge, am unable to accept that observation. Whether the source from which such assets originated is material or not depends upon the terms and sections of the Code of Civil Procedure. It depends on the specific terms and conditions on which the Court takes the deposit: If the Code specifies a special purpose for which the asset is to be utilised, it will, in my view, be erroneous to say that it is immaterial to consider the purpose for which that sum of money is to be used. Although Edgley, J. in his decision dissented from Harai Saha v. Faizlur Rahman, 40 Cal. 619 where the same view was taken as I am taking in this case, no attempt is made by Edgley J. to give any reason to depart from that view except stating :

'This principle does not appear however to have been followed by Rankin J. in the case of Noor Mahomed Dawood v. Bilasiram Thakursidas, 47 Cal. 515 in which he was dealing with a similar question under Order 21, Rule 55, Civil P.C.'

I am afraid Order 21, Rule 55 is entirely different in language from Order 21, Rule 89 and I am quite unable to say that it is a 'similar question'; to my mind they are very dissimilar. Edgley J. proceeds to quote from the judgment of Rankin J. the following observation :

'The money, paid with whatever motive, if paid to the Court, is paid upon terms of the Court whatever they may be. These terms, as I read section 73, have been laid down so that distinctions in the form in which execution has been had, in the precise extent to which execution has been allowed to run, in the exact source or genesis of the fund in Court, are how no part of the definition of the assets that are subject to distribution rateably.'

25. In spite of repeated judicial observations that analogies are dangerous, here again I find an analogy drawn where no analogy exists. Rankin J. in dealing with Order 21, Rule 55 was dealing with provisions which do not specify the objects and the purpose for which the fund of the Court is to be utilised as are specified in Order 21, Rule 89. Indeed without expressing any view on the decision of Rankin J. in the case of Noor Mahomed v. Bilasiram Thakursidas, 47 Cal. 515 for the obvious reason that I am not concerned in the case before me with Order 21 Rule 55 at all, I should have thought that the learned Judge's observation at p. 521 of that report that 'The money, paid without whatever motive, if paid to the Court, is paid upon terms of the Code whatever they may be' was, in fact, in support of the view that I am taking. The money paid under Order 21 Rule 89 is paid expressly for the specified purpose mentioned in that Code and can only be used and utilised on| the terms of that Code and the general provisions of section 73 cannot be said to override specific provision for a special case expressly made.

26. I should have therefore thought that the decision of Rankin J. far from supporting the view of Edgley J. was against it. Dealing with Order 21 Rule 55 Rankin J. had no occasion to face, far less to determine the conflict of provisions as between Order 21, Rule 89 and section 73. The observations of Rankin J. therefore in that case do not support the conclusion of Edgley J. and in any event such observations of Rankin J. should not be allowed to determine the construction of Order 21, Rule 89.

27. Edgley J. has also relied on a Patna decision. The decision of the Patna High Court in Bhatu Singh v. Raghunandan Prasad, 12 Pat. 772. It lays down that money paid into Court for the benefit of a particular decree-holder under Order 21, Rule 89, Civil P. C. becomes assets in the hands of the Court within the meaning of section 73 of that Code and is available for rateable distribution in the same way as any other money paid in for his benefit whether realised by sale or paid in order to avoid attachment. That decision is of a Division Bench of the Patna High Court consisting of James and Agarwalla JJ. in its Revisional Civil Jurisdiction. There, reference was made by the learned Judges in that case to the decisions of Noor Mohamad Dawood v. Bilasi Ram, 47 Cal. 515 & Sidnath Tewari v. Tej Bahadur, 54 ALL. 516 and these were followed. The decisions in Hari Saha v. Faizlur Rahaman, 40 Cal. 619, Thiraviyam Pillai v. Laltshmana Pillai, 41 Mad. 616 and Murugappan Chettiar v. Palaniappa Chetti, 42 Ind. cas 507 (Mad.) were dissented from.

28. The basis of this Patna decision appears to be set forth at p. 776 of the report and is in these terms :

'There appears to be no logical ground for excluding from liability to rateable distribution any payment made into Court under stress of execution for the benefit of any of the decree-holders entitled to rateable distribution. In our judgment the position is not affected by the fact that the sum 5%, which is deposited for payment to the auction purchaser is not liable to rateable distribution; but auction purchaser is not in any way concerned with the order under section 73.'

29. 'With great respect to the learned Judges responsible for the decision, I am unable to follow that line of reasoning. How is auction purchaser not concerned with the order under section 73 The money equal to 5% of the purchase price which is to be payable to him under Order 21, Rule 89 (l) (a) is surely part of the assets in the Court and if rateable distribution is to apply to the money in sub-r. (b) of Order 21, Rule 89 (l), I confess, I cannot discover, as I have already said, how a part of that asset under Order 21, Rule 89 (l) (a) is to be exempted from section 73.

30. The other part of the judgment of the Patna decision is based mainly, if not entirely, on the observation of Rankin J. in Noor Mohamed's case in 47 cal. 515. I have already expressed my views on that decision of Rankin J. and I have stated my reasons why that decision under Order 21 Rule 55 should not be applied to construe the entirely different provision in Order 21, Rule 89. I do not wish to repeat them here.

31. The learned Judges in that Patna decision at p. 777 observed :

'We cannot believe that when the rules under the first schedule of the Code of Civil Procedure were framed, this result was intended; and we ought not to allow it unless the terms of the rules make it perfectly clear that these anomalies and undesirable consequences must necessarily follow from their applications.'

32. The terms of Order 21, Rule 89 are in my view clear enough and are as unequivocably definite as any language can be and what was intended or not should be gathered from the language of the statute used when such language is so unambiguous. To my mind there is no anomaly or undesirable consequence either. The anomaly only arises because of the assumption, to my mind unjustified, that section 73 was intended to apply even to assets for which a specific and express rule of distribution is laid down by the Code. There is no anomaly, on the other hand, if one takes the view that section 73 and Order 21, Rule 89 should be construed in a manner so that both these provisions could be reconciled. Section 73 says that assets in the hands of the Court are subject to rateable distribution, but that is to be read subject to specific exceptions and provisions made in the Code of Civil Procedure, so that if any particular asset is by that statute described as being an appropriation for specific and particular purposes then such specific and particular purposes should in my view be respected. I will, therefore, adopt this construction that section 73 of the Code will apply to all assets unless the Code itself makes any exception and lays down any particular rule of distribution with regard to any particular assets, such as it has done with regard to money deposited in Court to set aside a sale under Order 21, Rule 89.

33. I, therefore, respectfully dissent from the Patna view for the reasons I have stated.

34. One more word remains to be said on the decision of Edgley J. The authority of that decision is considerably, if not wholly weakened by learned Judge's observations towards the end of the judgment at p. 841 in Chittagong Urban Co-operative Bank, Ltd. v. Indo-Burma Trades, Bank, Ltd., 42 C. W. N. 840, where the learned Judge says:

' having regard to the merits of this particular application we do not think it necessary to decide this question of law.'

35. That being so, it was an obiter dictum, not necessary for the decision of the case.

36. In the decision of Sidnath Tewari v. Tej Bahadur Singh, 54 ALL. 516 : A. I. R 1932 ALL. 411, there are certain observations to which reference has been made by the Patna authority. This was a decision not on Order 21, Rule 89 at all. What happened in that case was that the judgment-debtor deposited a certain sum in order to secure postponement of the sale. Sir Grimwood Mears C. J., delivering judgment held that the sum of money, in that case Rs. 500, deposited in Court by the judgment-debtor with a view to postpone the sale, was subject to rateable distribution. His first reason was on the argument put forward that this money-deposit by the judgment-debtor was not a part or parcel of the sale proceeds. Eightly the learned Chief Justice of the Allahabad High Court overruled that contention stating that section 295, Old Civil P. C. (Act XIV [14] of 1882) was amended to meet that try argument and the present section73, Civil P. C., 1908 was enacted by introducing the words : ' Where assets are held by Court. '

37. Therefore, whether the money was part and parcel of the sale proceeds or not does not now matter; and as long as it forms ' assets held by the Court it is now subject to rateable distribution.

38. Sir Grimwood Mears C. J., at p. 413 of the report, A. I. R. 1932 ALL. meets another argument that was advanced in that case, that the money was deposited and paid, there for use and benefit of Tej Bahadur Singh alone and, therefore, could not be rateably distributed with other decree-holders. At p. 413 the learned Chief Justice observes :

'So it was in the sense that the Rs. 500 was paid as bargain between Tej Bahadur Singh and the judgment-debtor that judgment debtor could buy a certain amount of time from Tej Bahadur Singh by the deposit of that money in satisfaction of his decree. The judgment-debtor is not injured because whatever happened to the Rs. 500 he would still get the time for which he bargained. The decree-holder is not injured because every decree-holder must know perfectly well that if by his exertions assets are received and are held by Court there is always the possibility that another decree-holder may come in and firing himself within the necessary status for being given rateable distribution and the original decree-holder has to see part of the assets obtained by his exertions pass into the hands of a rival decree-holder.'

39. This argument although open in the Allahabad case is not open in my judgment in a case under Order 21, Rule 89. It is, if I may say with great respect, quite right that a private bargain or a private contract is subject to the' limitations imposed upon it by any relevant statute operating on such contract. Therefore, any such private bargain must be subject to such statutes or statutory provisions. Therefore, a bargain or a contract between the judgment-debtor and the decree-holder that he may put in some money to purchase time and postpone sale would nevertheless be governed by section 73, because the money that is put in was put into Court and had then become assets held by the Court. Such private bargain or contract cannot be allowed to defeat the statutory provision in section 73 of the Code. Under Order 21, Rule 89 it is the statute which says how that particular fund is to be used and paid. It is not a private bargain between a judgment-debtor and a judgment-creditor. It is not a matter of contract between them. It is a statutory obligation imposed by Order 21, Rule 89 providing that the deposits in Court thereunder should be distributed in the manner laid down in sub-cls. (a) and (b), in sub rule (1) of Order 21, Rule 89.

40. One who deposits the money under Order 21, Rule 89, deposits it only on the terms of that rule and on no other. In the Allahabad case, there was no conflict between two different provisions of the Code of Civil Procedure at all and it was only a case whether a private contract between a judgment-debtor and a decree-holder could deprive other decree-holders of their statutory right to rateable distribution. In such a case there could be only one answer and that was the answer in the negative, as given by the Allahabad decision.

41. For me, however, in the present case the question is not whether by private bargain the statutory right to rateable distribution can be defeated. The question before me is whether a statutory right, mode and distribution of assets laid down under Order 21, Rule 89 could be defeated by the general right of rateable distribution under section 73 of the Code. For reasons which I have already given, I am of the view that such specific provision of Order 21, Rule 89 is not supplanted by section 73 of the Code. The Allahabad case also relied on the decision of Rankin J. in Noor Mohamad Dawood v. Bilasiram, (47 Cal. 515) which I have already discussed elsewhere in this judgment.

42. My view is that the specific rale of distribution laid down under Order 21, Rule 89 prevails over the general rule of rateable distribution laid down under section 73 of the Code, and is supported by a decision of Sale J., a very learned and experienced Judge on the Original Side of this Court, in Roshunlal v. Ramlal Mullick, 30 Cal. 262 and by the Division Bench decision of this Court in Sari Saha, v. Faizlur Bahman, 40 Cal. 619. The ratio of these decisions is that the terms under Order 21, Rule 89 of the Code are too precise to admit the application of the doctrine of rateable distribution under section 73 of the Code. These, decisions follow two other previous decisions also of this Court, one Hari Sundari Dasya, v. Sasibala Dasya, 1 C. W. N. 195, and the other in Biharilal Paul v. Gopallal Seal, 1 Cal. W. N. 695. As far as I am aware, this has been the uniform interpretation put upon Order 21, Rule 89 and its immediate predecessor on the Original Side of this Court for over half a century. This ancient lineage, however, would not have prevented me from taking a different view but I find there are good, reasons in support of these older decisions of this Court.

43. It is not necessary having regard to the view that I have taken and for the reasons that I have stated to record in detail of the decisions of Bombay and Madras High Courts. But even there authorities are available in support of my interpretation and conclusion. Reference may be made for that purpose to the decision of Scott C. J. and Chandavarkar J., in Ganesh v. Vithal, 37 Bom. 387, and also to the observation of that eminent Judge Sehagiri Iyyer in Thiraviyam Pillai v. Lakshmana Pillai, 41 Mad. 616 at p. 618.

44. There will, therefore, in my judgment, be an order in terms of the summons which I have set out at the beginning of this judgment. I will follow the same order for costs as was made by Sale J., in Roshunlal v. Ramlal Mullick, 30 Cal. 262. The applicant will have his costs of and incidental to this application and will be entitled to add them to his claim herein. As regards other decree-holders who have appeared on this summons they will also add their costs to their respective claims. The creditor who opposed the summons and appeared though counsel will have his costs, certified for counsel.


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