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CALCUTTA HIGH COURT
Mallik, J., Jack, J.
Kamini Kumar Choudhuri - Appellant
Versus
Sasanka Sekhar Choudhuri & Ors. - Respondent
Decided On : 14-03-1933
Rateable Distribution - Custody Court - The court set aside the order of rateable distribution made by the custody court as it had no authority to make such distribution under Order 21, Rule 52, Civil P.C. The case of Thakurdas Motilal v. Joseph Iskender (1917) 44 Cal 1072 was distinguished as the custody court in that case was also the attaching court.
Fact of the Case:
There were surplus sale proceeds in the Court of the Munsif, which were attached by several decree-holders. The Munsif made a rateable distribution of the money, but a decree holder sought to attach the money in execution of his decree and requested the Munsif to vacate the order for rateable distribution, which was rejected by the Munsif.
Finding of the Court:
The court found that the custody court had no authority to make rateable distribution and set aside the order. The rule was made absolute with no order as to costs.
Issues: The issue was whether the custody court had the authority to make rateable distribution of surplus sale proceeds.
Ratio Decidendi: The court relied on Order 21, Rule 52, Civil P.C. and distinguished the case of Thakurdas Motilal v. Joseph Iskender (1917) 44 Cal 1072 to conclude that the custody court had no authority to make rateable distribution.
Final Decision: The court set aside the order of rateable distribution made by the custody court and made the rule absolute with no order as to costs.
JUDGMENT
Mallik, J. - This rule is directed against an order made by the 3rd Munsif, Chittagong, whereby he refused to vacate an order made by him making rateable distribution of some money which was lying in his Court. What happened in the case was this: There were some surplus sale proceeds lying in the Court of the Munsif. This property was attached by several decree-holders in execution of their decrees. The learned Munsif made a rateable distribution of the money in his Court. Soon after that distribution had been made, the petitioner who obtained the present, rule and who also was a decree holder wanted to attach the money in execution of his decree and in that application he asked the learned Munsif to vacate his order for rateable distribution which he had already made. This application however was rejected by the learned Munsif; and that refusal order has given rise to this present rule.
2. This rule should, in my opinion, succeed. The Court of the 3rd Munsif of Chittagong was only a custody Court and being a custody Court, under Order 21, Rule 52, Civil P.C., it had no authority to make any rateable distribution. Under that rule it could only determine the question of priority and thereafter act under the instructions of the attaching Court. The case of Thakurdas Motilal v. Joseph Iskender (1917) 44 Cal 1072 no doubt approves of a rateable distribution made by a custody Court. But in that case the custody Court happened to be the attaching Court as well, The order of the Munsif making a rateable distribution will therefore be set aside and the rule made absolute. There will be no order as to costs as there has been no opposition to the rule.
Jack, J.
3. I agree.
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