( 1 ) THE revision is directed against the Order of the 1st Additional Subordinate judge, Kakinada, dated 24th January, 1981 rejecting the petitioner s claim for rateables under section 73, Civil Procedure Code.

( 2 ) THE following facts became material. The petitioner is the decree-holder in O. S. No. 517 of 1974 on the file of the District munsif s Court, Kakinada. The decree dated 31st July, 1974 is for money against the 2nd respondent amongst others who are legal representatives of Tota Veeranna who died pending that suit. The petitioner s execution petition E, P. No. 353 of 1979 was filed on 29th August, 1979 in the District muusif s Court, Kakinada, for attachment or moveables. During the pendency of that suit, a house property in Samalkot and certain lands in Venkatakrisbnarayapuram, were attached before judgment. The respondent obtained a preliminary decree for partition dated 30th september, 1972 and a final decree for partition dated 24th September, 1976 against the 1st respondent and others in O. S. No. 95 of 1971 on the file of the Subordinate Judge, kakinada. In execution of the decree for mesne profits, the 1st respondent brought certain house and lands to sale on 26th september, 1979. One Duti Satyanarayana was the auction-purchaser in respect of those lands for a sum of Rs 1,600 and the sale in his favour was duly confirmed on 29th november, 1979. The house property was also brought to sale on 26th September, 1979 and one Betina Mangaraju became the auction-purchaser and the sale in his favour was confirmed on 29th November, 1979. The petitioner applied before the Subordinate Judge, Kakinada, on 26th september, 1979, for rateables. The said claim was opposed by the 1st respondent and the Subordinate Judge rejected the rateables claimed by the petitioner on two main grounds, namely, the petitioner has not withdrawn his E. P. No. 353 of 1979 in the district Munsif s Court, Kakinada and if he withdraws the said E. P. in the District munsif s Court, the very foundation for claiming rateables would be lost. Secondly he stated that the petitioner is not entitled to seek execution in the Sub-Court, kakinada, by merely filing a claim for rateables.

( 3 ) THE first of the grounds given by the learned Subordinate Judge does not survive scrutiny. There is no need for the petitioner to withdraw E. P. No. 353 of 1979 before he filed the memo, claiming rateables. The petitioner was only bringing to the notice of the Subordinate Judge that he is also having another decree for money against the same judgment-debtors. If the petitioner is entitled to claim rateables on the date he filed the application, no consequences as imagined by the Subordinate judge would follow if on a subsequent date the petitioner withdrew E. P. No. 353 of 1979. If rateables are allowed to the petitioner, his decree O. S. No. 517 of 1974 would be partly satisfied to that extent.

( 4 ) THE more vital point which requires consideration is whether the petitioner is precluded from claiming rateables in O. S. No. 95 of 1971 because the petitioner did not get his decree in O. S. No. 517 of 1974 transmitted to the Sub-Court and he did not file any execution petition in that suit before the Sub-Court.

( 5 ) FROM the statment of facts made above, the petitioner cannot call to his aid the provisions of section 63, Civil Procedure Code, as the petitioner did not in his E. P. No. 353 of 1979 proceed against the immovelable properties of the 2nd respondent. If he had only mentioned in the E. P. that he was seeking execution against the immoveable properties also, the attachment before judgment he got made in his suit would have enured for his benefit and enabled him to call in aid the provisions of section 63, Civil procedure Code. In Arunackalam Chetty v. Periasami Servai, (1921) I. L. R. 44 Mad 902:41 M. L. J. 252: 14 L. W. 645 : a. I. R. 1921 Mad. 163 (F. B.), it was stated: "property attacked before judgment is not always property attached in execution of a dec

Click Here to Read the rest of this document