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Kasiwar De Vs. Aswini Kumar Pal and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1926Cal249,90Ind.Cas.527
AppellantKasiwar De
RespondentAswini Kumar Pal and ors.
Cases ReferredPallonji Shapurji Mistry v. Edward Vaughan Jordan
Excerpt:
civil procedure code (act v of 1908), sections 46, 73 - rateable distribution of assets--attachment of property, whether entitles decree-holder to share--procedure--execution, application for. - .....an order of the learned subordinate judge of nadia rejecting an application by the petitioner for rateable distribution of certain assets which were held by that court. the learned subordinate judge rejected the application on the ground that it was not made before the receipt of the assets by the court. the facts appear to be these--the present petitioner obtained a decree on the 28th may 1924 on the original side of this court and he applied on the 3rd june for the issue of a precept to the court of the subordinate judge to attach any property which belonged to the judgment-debtor meanwhile this property was sold in execution of some other decree by the court of the subordinate judge, on the 26th of june 1924. the present petitioner applied for execution of his decree in the court of.....
Judgment:

1. This is a Rule issued against an order of the learned Subordinate Judge of Nadia rejecting an application by the petitioner for rateable distribution of certain assets which were held by that Court. The learned Subordinate Judge rejected the application on the ground that it was not made before the receipt of the assets by the Court. The facts appear to be these--the present petitioner obtained a decree on the 28th May 1924 on the Original Side of this Court and he applied on the 3rd June for the issue of a precept to the Court of the Subordinate Judge to attach any property which belonged to the judgment-debtor meanwhile this property was sold in execution of some other decree by the Court of the Subordinate Judge, on the 26th of June 1924. The present petitioner applied for execution of his decree in the Court of the Subordinate Judge on the 16th July 1924. It will appear that some time before, the date of which the petitioner is unable to give us, he had applied to the Original Side of the High Court for the transmission of his decree for execution to the Court of the Subordinate Judge of Nadia. The order of transmission was made on the 7th July 1924. The date of, this application has not been given to us and, therefore, it does not appear whether or not it was made before the 26th of June the date of the sale. It is quite clear that the application to the Court to share in the rateable distribution of the assets was made after the receipt of the assets being received on the 26th of June and the application for execution being made on the 16th July.

2. The learned Vakil for the petitioner argues that the attachment which he applied for on the 3rd of June was sufficient to allow him to share in the rateable distribution of the assets. But a mere application for an attachment of the property would not be sufficient to entitle the petitioner to share in the rateable distribution of the assets. In order to entitle him to a share in the rateable distribution of the assets it was necessary that he should make an application in execution to the Court before the assets were actually received and an application for an attachment under Section 46 cannot be regarded as an application for execution.

3. A somewhat similar case is the case of Pallonji Shapurji Mistry v. Edward Vaughan Jordan 12 B. 400 : 6 Ind. Dec. (N.S.) 752. Though the facts of that case are in some way dissimilar, the principle to be applied is the same. In that case there had been an attachment before judgment and no further steps in execution were taken by the decree-holder. The learned Judges held that even though the attachment before judgment continued after the decree had been made it was still necessary to formally apply for execution of the decree in order to entitle the decree-holder to a rateable share in any assets which might come into the possession of the Court. Applying this principle to the present case it seems to me that a mere attachment of the property after judgment is not sufficient to entitle the decree-holder to a rateable distribution of the assets. It is necessary that he should make a formal application for execution. This admittedly was not done before the assets came into the possession of the Court. The order of the learned Subordinate Judge is, therefore, right. The Rule is discharged with costs. Hearing fee two gold mohurs. There will be one set of costs to be divided equally between the different sets of contesting opposite party.

Ewart Greaves, J.

4. I agree.


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