Skip to content


Jagadamba Loan Co. Ltd. Vs. Satyendra Chandra Ghose Moulik and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1937Cal730,173Ind.Cas.516
AppellantJagadamba Loan Co. Ltd.
RespondentSatyendra Chandra Ghose Moulik and ors.
Cases Referred and Raja of Karvetnagar v. Venkata Reddi
Excerpt:
- .....in an application under sections 148-a and 174(3), bengal tenancy act. the facts are that the decree-holder, a loan company, instituted a rent suit under section 148-a making the opposite party a co-sharer landlord. a notice was served upon the opposite party who duly appeared and joined as co-plaintiff and paid court-fees for his share of the rent for the three years in suit. thereafter, the suit was decreed on 1st august 1933. the decree specified separately the amount payable to the loan co. and also the amount payable to the opposite party. thereafter, the appellant decree-holder duly filed a petition for execution of his share of the decree by sale of the holding. in accordance with section 148-a (7) a notice of the application for execution was served upon the opposite party.....
Judgment:

M.C. Ghose, J.

1. This is a second appeal by the decree-holder in an application under Sections 148-A and 174(3), Bengal Tenancy Act. The facts are that the decree-holder, a loan company, instituted a rent suit under Section 148-A making the opposite party a co-sharer landlord. A notice was served upon the opposite party who duly appeared and joined as co-plaintiff and paid court-fees for his share of the rent for the three years in suit. Thereafter, the suit was decreed on 1st August 1933. The decree specified separately the amount payable to the Loan Co. and also the amount payable to the opposite party. Thereafter, the appellant decree-holder duly filed a petition for execution of his share of the decree by sale of the holding. In accordance with Section 148-A (7) a notice of the application for execution was served upon the opposite party but he did not appear. The sale was held on 7th December 1933 and the property was purchased for Rs. 790 by a third person and the appellant deoree-holder in due course withdrew the amount of his part of the decree and after three months he applied under Section 148-A(8)(c) for the rent due to him in respect of the holding between the institution of the suit and the date of the sale and that amount was in due course paid to him and the sale price was thus exhausted. A year and a half after the sale, viz. on 6th July 1935, the opposite party made an application under Section 41, Civil P.C., and Section 174(SIC),' Ben. Ten. Act, seeking to set aside the sale and demanding in the alternative that the appellant should bring into Court; the amount which he had withdrawn. The trial Court found that the application to set aside the sale was barred by limitation. The opposite party's allegation that he had not been served with a notice was found by the Munsif to be false. As to the prayer that the sale proceeds be brought into Court for rateable distribution between the decree-holders, the Munsif allowed the application and directed the appellant to deposit into Court within one month the amount of purchase money, Rs. 790, withdrawn by him, so that out of the amount he may be paid the costs of the execution case and the balance of the purchase money may be rateably distributed between him and the opposite party. Against that order the appellant made an appeal which was dismissed by the District Judge.

2. A preliminary objection is taken that this being a dispute between two decree-holders, Section 47 has no application and no appeal lies to this Court. The reply is that Section 47, Civil P.C., is wide enough to include a dispute between two decree-holders. Under the section all questions arising between the parties to the suit and relating to the execution of a decree shall be determined by the Court executing the decree. Now, these two decree-holders are parties to the suit and in the dispute which is under consideration their interests are divergent and the matter is clearly a dispute in execution under Section 47: see Sorabji Coovarji v. Kala Raghunath (1912) 36 Bom 156 and Raja of Karvetnagar v. Venkata Reddi AIR 1916 Mad 20. The preliminary objection is overruled. On the merits, the main question is whether the opposite party's petition is barred by limitation. Now, as stated above, the sale was held on 7th December 1933 and action under Section 148-A (8)(c) was taken and the balance of the purchase money was allowed to be withdrawn by the appellant on 8th March 1934. It was not until one year and four months after that date, viz. 6th July 1935 that the opposite party made an application in Court praying for a rateable distribution between himself and the appellant. Now, under Section 73, Civil P.C., which deals generally with rateable distribution of the assets of the judgment-debtor among rival decree-holders, the limitation is put in the section itself, namely the application by the decree-holder must be made before the receipt of the judgment-debtor's assets, in other words, in the case of an auction-sale before the date of the sale. So that, a second decree-holder who neglects to appear until after the sale has been held and the sale proceeds have been allowed to be withdrawn by the first decree-holder, has no remedy in the way of rateable distribution. Sub-s. 8 of Section 148-A is in these words:

In disposing of the proceeds of the sale in execution of the decree the following rules instead of those contained in Section 73, Civil P.C., shall be observed.

3. Then follow the three clauses which deal with how the sale price shall be distributed. While Section 73 in effect states that the application by the second decree-holder should be made before the sale of the judgment-debtors' property, there is no such clause in Sub-section (8). This probably was due to an omission of the Legislature, but under Sub-section (7) it is laid down that when one co-sharer landlord has applied for execution of the decree by sale of the holding, the Court shall give notice of the application of the execution to the other co-sharer landlords. The object of such a notice was to give the co-sharer decree-holder opportunity to appear and join in the execution petition and claim his share of the decree from the proceeds of the sale. Though Sub-section (8) does not lay down a period of limitation, it cannot be maintained that the co-sharer decree-holder is at liberty to come whenever he likes whether at the end of a year and a half, as in the present case, or at the end of 10 years or 20 years or 100 years. Every remedy provided by our law is controlled by a period of limitation. It cannot be presumed that the particular remedy sought by the opposite party is not to be governed by any period of limitation. When the Act has not imposed in terms a period of limitation, it is our duty to impose a reasonable period for the remedy sought. Now, in this case, the opposite party himself was aware that he came after a reasonable period in Court and that is why he came with a false story that he had not been served with a notice. He knew that having been served with a notice, he waited too long so that he could not reasonably ask the Court to give him the remedy. As stated above, under Section 73, Civil P.C., the party who wants a rateable distribution must appear before the date of the sale. In the present case, the opposite party not only asked for rateable distribution but also asked that the sale be set aside. The second prayer had to be rejected because it was barred by limitation. In my opinion, the first prayer is also made beyond a reasonable time and as such must be rejected.

4. The result is that the appeal is allowed and the application of the opposite party is rejected with costs in all Courts. Hearing fee in this Court is assessed at two gold mohurs. Leave to appeal is refused.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //