Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1954 Supreme(AP) 28

HIGH COURT OF ANDHRA PRADESH
UMAMAHESWARAM, J.
Maddu Venkata Subbaiah
Versus
Alane Adinarayana
Civil Revn. Petn. No. 1701 of 1952 to revise the decree of Sub. J., Narasaraopet,
Decided On : 04-08-1954

Advocates:
G. Venkatarama Sastry, for Petitioners; Kaduri Seshagiri Rao and Kasturi Siva Prasad Rao, for Respondents.

"Assets" in Section 73 of the Civil Procedure Code, 1908 refers only to money.

Headnote:
CIVIL PROCEDURE CODE, 1908 - SECTION 73 - INTERPRETATION OF "ASSETS" - MEANING OF "ASSETS" - "ASSETS" IN SECTION 73 REFERS ONLY TO MONEY - NATIONAL SAVINGS CERTIFICATES NOT "ASSETS" WITHIN THE MEANING OF SECTION 73.
Fact of the Case:

The petitioner obtained a decree in a small cause suit and attached two National Savings Certificates standing in the name of the defendant. The respondents filed a small cause suit and attached the same National Savings Certificates before judgment. The petitioner filed an application to cash the National Savings Certificates, but it was dismissed due to the attachment order. The petitioner claimed that he was entitled to the full value of the National Savings Certificates as the respondents' application was made long after the receipt of the assets. The question before the court was whether "assets" in Section 73 of the Civil Procedure Code, 1908 includes National Savings Certificates.
Finding of the Court:

The court held that "assets" in Section 73 of the Civil Procedure Code, 1908 refers only to money. The court reasoned that the latter part of Section 73, which provides for the deduction of costs of realization from the assets, indicates that "assets" means money, as costs can only be deducted from money and not from goods. The court also relied on two previous decisions of the Calcutta High Court, which held that "assets" in Section 73 means money.
Issues: Whether "assets" in Section 73 of the Civil Procedure Code, 1908 includes National Savings Certificates.
Ratio Decidendi: The court held that "assets" in Section 73 of the Civil Procedure Code, 1908 refers only to money. The court reasoned that the latter part of Section 73, which provides for the deduction of costs of realization from the assets, indicates that "assets" means money, as costs can only be deducted from money and not from goods. The court also relied on two previous decisions of the Calcutta High Court, which held that "assets" in Section 73 means money.
Final Decision: The court dismissed the petitioner's revision petition and held that the respondents were entitled to rateable distribution of the proceeds of the National Savings Certificates.

Judgement Key Points

Key Points: - "Assets" in Section 73 refers only to money (!) (!) . - National Savings Certificates are not "assets" within Section 73 (!) (!) . - Costs of realization can only be deducted from money, not goods (!) . - The distinction between "receipt of an asset" and "realisation of an asset" under Order 21, Rule 52 does not apply to Section 73 (!) . - Respondents were entitled to rateable distribution as the attachment before judgment preceded receipt of cash (!) .

What is the meaning of "assets" in Section 73 of the Civil Procedure Code, 1908?

Does "assets" in Section 73 include National Savings Certificates?

What is the right to rateable distribution when assets are attached before judgment?

ORDER :- This civil revision petition raises an interesting question of law as to the interpretation of S. 73, C.P.C. The petitioner herein filed Small Cause Suit No. 312 of 1952 and obtained a decree on 31-7-1952. He filed I.A. No. 878 of 1950 and obtained attachment before judgment of two National Savings Certificates standing in the name of the defendant and given as security before the Collector of Guntur in respect of a licence issued in his name. The attachment before judgment was made absolute on 20-9-1950 after the suit was decreed.

The respondents herein filed Small Cause Suit No. 1 of 1949 on the file of the Subordinate Judges Court of Narasaraopet and attached the National Savings Certificates before judgment on 14-12-1950. Before they were so attached, the petitioner herein filed E.A. No. 672 of 1950 to cash the National Savings Certificates on 4-12-1950, but, as the order of attachment before judgment was passed by the Subordinate Judges Court, Narasaraopet, on 14-12-1950, the application was dismissed on 12-3-1951. The District Munsif of Bapatla, having cashed the National Savings Certificates, sent the amount to the Subordinate Judges Court of Narasaraopet, on 10-8-1951.

As per the directions of the District Munsif, the petitioner herein filed E.A. No. 115 of 1951 before the Subordinate Judge, Narasaraopet, claiming that he was entitled to the full value of the National Savings Certificates. His contention was that the application by the respondents was made long after the receipt of the assets and that, therefore, the respondents were not entitled to an order for rateable distribution. The simple question for consideration is what exactly is the meaning of "assets" in S. 73.

2. The meaning of the expression "assets" given in the Concise Oxford Dictionary (4th Edn.) is

"enough goods to enable heir to discharge debts and legacies of testator; property liable to be so applied; effects of insolvent debtor; property of person or company that may be made liable for debts."

In Websters Dictionary, the meaning given is the entire property of all sorts belonging to a person, Corporation or an Estate."

The learned Advocate for the petitioner contended that the expression "assets" must be construed as including National Savings Certificates and that, as the National Savings Certificates were received in the Court of the District Munsif of Bapatla on 18-9-1950 long before the order of attachment before judgment was made by the Subordinate Judges Court, Narasaraopet, no rateable distribution should be ordered. Though no doubt "assets" may ordinarily mean every form of property, still I am not prepared to adopt the Dictionary meaning in construing the provisions of S. 73, C.P.C. The latter part of S. 73 furnishes a valuable clue as to the meaning of the expression "assets" and it runs in the following terms :

"the assets, after deducting the costs of realisation, shall be rateably distributed among all such persons."

If the expression "assets" is to be understood as meaning every form of property, the costs of realisation cannot be deducted out of the assets but only out of the moneys realised from and by the sale of the assets. So, I agree with the contention of the Advocate for the respondents that the expression "assets" in S. 73 means only money.

3. The only two decisions that are directly in point and brought to my notice in regard to the interpretation of the expression "assets" are those reported in - Deva Dutta Serogi and Son v. P.G. Mitter and Son, AIR 1939 Cal 530 (A) and - Jogesh Prasad v. Saligram Lachmi Narayan, 45 Cal WN 674 (B). In AIR 1939 Cal 530 (A) at page 535, MacNair, J. states as follows :

"But this argument appears to me to beg the question, namely, what is the meaning of the word assets, and I can find no reported cases in which the term has ever been applied otherwise than to money. That this is the true meaning is substantiated by the provision that the assets after deducting the costs of realisation shall

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