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HIGH COURT OF CALCUTTA
H. K. BOSE, DEBABRATA MOOKHERJEE
SATYENDRA NATH BOSE - Appellant
Versus
BIBHUTI BHUSAN BHAR - Respondent
A. F. O. O. 165 Of 1961
Decided On : JULY 05, 1962
CIVIL PROCEDURE CODE - SECTION 73 - RATABLE DISTRIBUTION OF ASSETS - APPLICATION FOR EXECUTION - CERTIFIED COPY OF DECREE - ORIGINAL SIDE RULES, CHAPTER XVII, RULE 10 - MANDATORY REQUIREMENT - NON-COMPLIANCE - DISMISSAL OF APPLICATION.
Fact of the Case:
The appellant, Satyendra Nath Bose, obtained a consent decree on February 16, 1959, and applied for execution on February 17, 1959. The application was not accompanied by a certified copy of the decree, as required by Rule 10 of Chapter XVII of the Original Side Rules. The learned Judge dismissed the appellant's prayer to participate in the judgment-debtor's assets under Section 73 of the Code of Civil Procedure.
Finding of the Court:
The Court held that the application for execution was not a proper application inasmuch as it had not been accompanied by a certified copy of the decree. The Court further held that the failure to comply with the mandatory requirement of Rule 10 of Chapter XVII of the Original Side Rules disentitled the appellant to participate in the assets under Section 73 of the Code of Civil Procedure.
Issues: 1. Whether the application for execution was a proper application. 2. Whether the failure to comply with the mandatory requirement of Rule 10 of Chapter XVII of the Original Side Rules disentitled the appellant to participate in the assets under Section 73 of the Code of Civil Procedure.
Ratio Decidendi: 1. The Court held that the application for execution was not a proper application inasmuch as it had not been accompanied by a certified copy of the decree. The Court relied on Rule 10 of Chapter XVII of the Original Side Rules, which makes it mandatory to attach a certified copy of the decree to the application for execution. The Court further held that the failure to comply with this mandatory requirement could not be remedied under Order 21, Rule 17 of the Code of Civil Procedure, as Rule 10 of Chapter XVII of the Original Side Rules is a specific rule for the Original Side that prevails over the corresponding rule in the Code. 2. The Court held that the failure to comply with the mandatory requirement of Rule 10 of Chapter XVII of the Original Side Rules disentitled the appellant to participate in the assets under Section 73 of the Code of Civil Procedure. The Court reasoned that Section 73 of the Code of Civil Procedure requires a proper application for execution, and that the requirements of such application depend on the rules of the Court before which it is made. In the present case, the application for execution was made before the High Court, and therefore the requirements of Rule 10 of Chapter XVII of the Original Side Rules had to be followed.
Final Decision: The appeal was dismissed, and each party was ordered to pay and bear its own costs.
( 1 ) THIS appeal is from an order of G. K. Mitter, J. , dated March 27, 1961, refusing the appellant's prayer to participate under Section 73 of the Code of Civil Procedure in rateable distribution of certain assets held by the Court.
( 2 ) THE short facts required to be stated for the purpose of this appeal are that one Profuila Lal Guin (respondent No. 6) was heavily indebted to several persons including respondents Bibhuti Bhusan Bhar and Aminulla Khan. Profulla was in the employ of the National aim Grindlay's Bank Limited, and he had his Provident Fund Account with the Bank. In May, 1955, respondent Aminulla Khan obtained a decree against him for the sum at Rs. 7431 and odd. He applied for execution of the decree in August of that year. In September 1955 respon-dent Bibhuti Bhusan Bhar obtained a decree against Profulla for Rs. 8376 and odd. It was a consent decree which provided for payment of the decretal dues by annual instalments. Default having occurred in payment of the instalments, attachment of the money lying to the judgment-debtor's credit with the Bank was granted. Later on, however, upon Profulla's application the attachment was vacated, and he personally undertook to Court to pay the decretal amount in monthly instalments. There was a further undertaking not to withdraw or deal with or disclose of any amount from the Provident Fund except for the purpose of payment of the decretal dues of the decree-bolder Bibhuti. There was default again and there was fresh attachment. Similarly there were other attachments at the instance of other decree-holders including the said Aminulla.
( 3 ) ON February 1, 1959, Profulla retired from service and the Provident Fund money became payable to aim. Within a few days of his retirement the Bank asked for directions of the Court for disposal of the attached money. A Garnishes notice was served upon the Bank at the instance of respondent Bibhuti, and the Bank was rdered by the Court to pay to the Sheriff a sum of Rupees 15801-85 np. On March 23, 1950, the Accountant General certified that the sum had been received and it stood to the credit of the suit which respondent Bibhuti had brought against the judgment-debtor (Suit No. 3007 of 1952 ). Meanwhile appellant Satyendra Nath Bose had instituted a suit (Suit No. 166 of 1959) in the Original Side of this Court on February 10, 1959. The hearing of the suit appears to have been expedited with amazing speed and a consent decree for Rs. 15000 and odd was made on February 16, 1959. It thus appears that the appellant obtained his decree with considerable speed and alacrity. He lost no time and applied on February 17, 1959, for execution of the decree and asked for attachment. Upon his application the money lying to the credit of the judgment-debtor Profulla with the Bank was attached. It was at this stage that respondent Bibhuti applied to the Court for an order of payment in the execution proceedings he had commenced, and in the alternative, prayed for an order of rateable distribution of the assets of the judgment-debtor which were then held by the Court. In accordance with the Rules of this Court, all the judgment-creditors of Profulla were notified of respondent Bibhuti's summons application.
( 4 ) IN this application filed by Bibhuti a claim was made that he had priority over the other attaching creditors. This claim was founded upon the undertaking given by the judgment-debtor upon which at a certain stage, the attachment on his Provident Fund Money was lifted. Bibhuti's contention was that in consequence of the undertaking the Provident Fund money stood charged with the payment of his decretal dues and costs. It was thus a preferential claim which Bibhuti put forward; in the alternative a prayer was made that there might be rateable distribution of the money lying to the credit of his suit, being Suit No. 3007 of 1952.
( 5 ) OF the other attaching creditors, respondent Aminulla seems to have prosecut
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