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Hari Saha and anr. Vs. Faizlar Rahman and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in18Ind.Cas.839
AppellantHari Saha and anr.
RespondentFaizlar Rahman and ors.
Cases Referred and Bihari Lall Paul v. Gopal Lal Seal
Excerpt:
execution of decree - sale in execution--setting aside sale by deposit by judgment-debtor--rateable distribution--civil procedure code (act v of 1908), section 73, order xxi, rule 89. - .....against certain persons, and executed it by a sale of immoveable property belonging to them. two decree-holders in other suits, opposite parties nos. 6 and 7, then applied under section 73 of the code for rateable distribution of the money realized by the sale in the petitioner's suit; the judgment-debtor proceeded to deposit in court under order xxi, rule 89, money representing the decretal amount, and got the sale set aside, after which opposite parties nos. 8 and 9 applied for rateable distribution, which was made among the petitioners and all the other decree holders. a rule has been granted calling on the decree-holders other than the petitioners to show cause why the order made under section 73 should not be set aside on the ground that the court had no power to order rateable.....
Judgment:

1. The petitioners before us obtained a money decree against certain persons, and executed it by a sale of immoveable property belonging to them. Two decree-holders in other suits, opposite parties Nos. 6 and 7, then applied under Section 73 of the Code for rateable distribution of the money realized by the sale in the petitioner's suit; the judgment-debtor proceeded to deposit in Court under Order XXI, Rule 89, money representing the decretal amount, and got the sale set aside, after which opposite parties Nos. 8 and 9 applied for rateable distribution, which was made among the petitioners and all the other decree holders. A Rule has been granted calling on the decree-holders other than the petitioners to show cause why the order made under Section 73 should not be set aside on the ground that the Court had no power to order rateable distribution.

2. Under the old Code, it was held by this Court in Roshun Lall v. Ram Lall Mullick 30 C. 262 that when money was paid into Court under Section 310A, there could be no rateable distribution under Section 295 for the terms of the former section were too precise to admit of the application of the latter. This followed the decisions of Hari Sundari Dasya v. Shashi Bala Dasya 1 C.W.N. 195 and Bihari Lall Paul v. Gopal Lal Seal 1 C.W.N. 695 where, as in this case, application for rateable distribution was made before the payment into Court under Section 310A, now represented by Order XXI, Rule 89. This case is, therefore, covered by authority unless the alterations effected in the enactments in question have changed the law. Section 310A of the old Code is practically reproduced in Order XXI, Rule 89; but Section 295 is re-placed by Section 73. The result of this is that whereas the subject-matter of rateable distribution used to be assets realised by sale or otherwise in execution of a decree' it is now 'assets held by the Court.' It is obvious that the scope of the new section is thus far wider than that of the old one; but this does not alter the effect of the enactment in Section 310A which is reproduced in Order XXI, Rule 89.

3. The result is that this Rule must be made absolute and the order set aside. The petitioner is entitled to his costs, one gold mohur.


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