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1960 Supreme(Pat) 123
PATNA HIGH COURT
V.Ramaswami and Kanhaiya Singh JJ.
Bhola Sahu
Versus
Chameli Devi
Civil Revision No. 82 of 1958 ;
Decided On : JULY 25, 1960
The main legal point established in the judgment is that a petitioner is entitled to rateable distribution of assets under Section 73 of the Civil Procedure Code, even if the execution case has not been transferred to the court where the assets are held.
Headnote:
Rateable Distribution - Civil Procedure Code - The court held that the petitioner was entitled to rateable distribution of assets under Section 73 of the Civil Procedure Code, despite not having the execution case transferred to the court where the assets were held. The court cited relevant legal provisions and case law to support its decision.
Fact of the Case:
The petitioner sought rateable distribution of assets under Section 73 of the Civil Procedure Code, but the claim was dismissed by the court of the 1st Munsif, Darbhanga, on the ground that the execution case had not been transferred from the 2nd Munsif's Court.
Finding of the Court:
The court found that the order dismissing the petitioner's claim for rateable distribution was erroneous in law and must be set aside. It held that the petitioner was entitled to rateable distribution despite the execution case not being transferred to the court where the assets were held.
Issues: The main issue was whether the petitioner was entitled to rateable distribution of assets under Section 73 of the Civil Procedure Code without having the execution case transferred to the court where the assets were held.
Ratio Decidendi: The court relied on Section 73 of the Civil Procedure Code and cited case law to support its finding that the petitioner was entitled to rateable distribution of assets despite the non-transfer of the execution case.
Final Decision: The court set aside the order dismissing the petitioner's claim and directed the case to go back to the court for determination in accordance with law. No costs were awarded to the opposite party.
Key Points: - The petitioner is entitled to rateable distribution of assets under Section 73 of the Civil Procedure Code even if the execution case has not been transferred to the court where the assets are held. (!) (!) - Section 63(1) of the Civil Procedure Code governs where property is held by a court and under attachment by multiple decrees; the appropriate court is determined by the court with the attached property or highest grade, but transfer status does not invalidate rateable distribution claims if conditions of Section 73 are met. (!) (!) (!) - The court held the initial order dismissing the rateable distribution claim was erroneous and must be set aside, directing the case to be decided in accordance with law. (!) (!) - The petitioner's claim for rateable distribution under Section 73(1) is supported by the cited authorities recognizing entitlement notwithstanding non-transfer of the execution case. (!) - The judgment directs the case to be returned to the appropriate Munsif for determination in accordance with law, with no costs awarded due to lack of appearance by the opposite party. (!) (!)
How to obtain rateable distribution of assets under Section 73 of the Civil Procedure Code without transfer of the execution case to the court holding the assets?
What is the entitlement of a petitioner to rateable distribution under Section 73 despite non-transfer of the execution case between courts?
What are the conditions under which a court must order rateable distribution when assets are held by a court and multiple decrees exist against the same judgment-debtor?
1. In this case the petitioner Bhola Sahu was executing a decree obtained against opposite party No. 2 Sital Sahu in execution case, No. 181 of 1956 in the Court of the 2nd Munsif of Darbhanga. It appears that opposite party No. 1 Srimati Chamoli Devi was also executing another decree against the same judgment-debtor in execution case No. 158 of 1956 in the Court of the 1st Munsif, Darbhanga. In the latter execution case the property was sold on the 19th of July, 1957, and the assets came into the hauds of that executing Court. The sale was confirmed on the 19th of September, 1957. On the 17th of August, 1957, the petitioner made an application in the Court of the 1st Munsif, Darbhanga, for rateable distribution of the assets under Section 73 of the Civil Procedure Code. Section 73(1) of the Civil Procedure Code reads as follows :
"73. (1) Where assets are held by a Court and more persons than one have, before the receipt of such assets, made application to the Court for the execution of decrees for the payment of money passed against the same judgment-debtor and have not obtained satisfaction thereof, the assets, after deducting the costs of realization, shall be rateably distributed among all such persons;"
Sec. 63, Civil Procedure Code, is to the following, effect :
"63. (1) Where property not in the custody of any Court is under attachment in execution of decrees of more Courts than one, the Court which shall receive or realize such property and shall determine any claim thereto and any objection, to the attachment thereof, shall be the Court of highest grade, or, where there is no difference in grade between such Courts, the Court under whose decree the property was first attached.
(2) Nothing in this section shall be deemed to invalidate any proceeding taken by a Court executing one of such decrees."
It is not disputed that it was the court of the 1st Munsif under whose decree the property was attached, and, therefore, it was the proper Court to which the claim should be made under the provisions of Sec. 63(1) of the Civil Procedure Code. But the Court of the 1st Munsif, Darbhanga, in this case has dismissed the claim of the petitioner for rateable distribution on the ground that he has not got the execution case, namely, execution case No. 181 of 1956, transferred from the 2nd Munsifs Court, Dharbhanga, to the Court of the 1st Munsif, Darbhanga.
2. It was argued on behalf of the petitioner that the order of the 1st Munsif, Darbhanga, in this case dated the 3rd of January, 1958, is erroneous in law and must be set aside in exercise of our revisional powers. It was submitted by learned Counsel that if the conditions laid down under Section 73(1) of the Civil Procedure Code for making an application for rateable distribution are satisfied, then the Court is bound to make an order for rateable distribution in accordance with the provisions of that section even though the execution case had not been transferred from the Court of the 2nd Munsif, Darbhanga, to the Court of the 1st Munsif, Darbhanga.
In our opinion, this argument is well founded and must prevail. This view is supported by a decision of the Madras High Court in Megraj Iswar das V/s. Corporation of Madras, AIR 1936 Mad 797, f where it was pointed out by Venkatasubba Rao and Cornish, JJ. that although the decree-holder claiming rateable distribution should ordinarily, as prescribed by Section 73, have applied for execution to the Court by which the assets were held, Sec. 63 of the Civil Procedure Code recognised an exception and laid down when and to what extent this rule may be departed from. Where the property is under attachment in execution of decrees of more Courts than one, the right to rateable distribution arises, if the other conditions specified in Section 73 are satisfied.
The same principle was reiterated by the Allahabad High Court in Firm Chand Mal Rup Chand V/s. Gurdial Prasad, AIR 1939 All 159 where all the authorities on the point have bee
