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1975 Supreme(Del) 6
High Court Of Delhi
RAMESH CHANDER JAIN - Appellant
Versus
MANOHAR LAL JAIN - Respondent
. 53 of 1972
Decided On : 01/24/1975
I.C.JAIN, N.R.Suri, S.R.Sharma, Yogesh Sharma
The money decree-holders who are claiming rateable distribution in the balance of sale proceeds remaining after the discharge of the mortgage debt, or any other encumbrance, should have applied to the court which passed the decree ordering such sale for execution of such decrees, and have not obtained satisfaction thereof.
Headnote:
EXECUTION - RATABLE DISTRIBUTION - MORTGAGE DECREE - SALE OF PROPERTY - SURPLUS SALE PROCEEDS - MONEY DECREE-HOLDERS - APPLICATION FOR EXECUTION - COURT WHICH PASSED THE DECREE - PROVISO (C) TO SECTION 73 (1) OF THE CODE OF CIVIL PROCEDURE - INTERPRETATION.
Fact of the Case:
Four rival decree-holders claimed execution of their decrees against the assets of Manohar Lal Jain (since deceased) by payment of the surplus of the amount realized in execution of the mortgage decree. The mortgage decree was passed by the Delhi High Court against Manohar Lal Jain and the property was put to auction in execution of the mortgage decree.
Finding of the Court:
The court held that the money decree-holders who are claiming rateable distribution in the balance of sale proceeds remaining after the discharge of the mortgage debt, or any other encumbrance, should have applied to the court which passed the decree ordering such sale for execution of such decrees, and have not obtained satisfaction thereof. The proviso (c) does not say that the money decree-holder should have applied to the court which passed the mortgage decree for sale, and therefore, it is not open to add words to proviso (c).
Issues: Whether the money decree-holders were entitled to rateable distribution of the surplus sale proceeds.
Ratio Decidendi: The court interpreted proviso (c) to section 73 (1) of the Code of Civil Procedure and held that the money decree-holder, who is claiming rateable distribution may have made an application to the court which passed his decree and, thereafter obtained orders for transfer of the execution application to the court which passed the mortgage decree, prior to the sale of that property. The mortgage property could have been sold in execution of these decrees. In the alternative, the money decree-holder may have applied to the court which passed his decree, and obtained attachment of the mortgaged property. After the attachment had been effected, the money decree- holder could apply to the court which passed his decree for orders for sale of the mortgaged property for execution of his decree, subject to the mortgage charge. If all these steps had been taken prior to the sale of the mortgagedproperty by the court which passed the mortgage decree, then, in my opinion, the money decree-holder is entitled to reteable distribution under clause fourthly of proviso (c).
Final Decision: The court allowed the execution petitions of the two money decree-holders who had made applications for execution prior to the sale of the property and obtained orders for attachment of the mortgaged property. The court directed that the surplus sale proceeds be distributed rateably among the two decree-holders.
( 1 ) THESE four excution petitions, namely. Ex. No. 53 of 1972 (Ramesh Chander Jain v. Manohar Lal Jain) Ex. No. 54 of 1972 {smt. Manju Jain v. Manohar Lal Jain) Ext. No. 63 of 1971 (Sita Ram Sharma v. Manohar Lal lain) and Ext. No. 34 of 1973 (Yogesh Sharma and others v. Devi Dayal Jain and. others) arc of four rival decree-holders claiming execution of their decrees against the assets of Manohar Lal Jain (since deceased) by payment of the surplus of the amount realised in execution of the mortgage decree in suit No. 157 of 1968.
( 2 ) IN the suit, being suit No. 157 of 1968 (Kishan Mohan Kapoor and others v. Manohar Lal Jam) a decree was granted by this Court on 22-1-1969, for realising the loan amount by the sale of the mortgaged property bearing No. 89 to 94/4, Dariba Kalan, Delhi (hereinafter REFERRED TO to as the mortgaged property ). The final mortgage decree by sale of the mortgaged property for recovery of Rs. 53. 791. 67 and interest on Rs. 50. 000. 00 at the rate of 7 per cent per annum for the date of the suit till realisation with costs of the suit was passed in favour of Shri Kishan Mohan Kapoor and others against Judgment-debtor, Shri Manohar Lal Jain. It was ordered in that decree that if the judgment- debtor deposits in the High Court by February 16, 1970, the decretal amount, the decree shall be deemed to be satisfied. The judgment- debtor Shri Manohar Lal Jain committed default in the payment of the decretal amount by February 16, 1970 and as such, the decree- holders moved an application dated March 25, 1970 being Execution No. 17 of 1970 in this Court, for sale of mortgaged property. In pursuance of the orders dated May 26, 1970 passed in execution Case No. 17 of 1970, the mortgaged property being property No. 89 to 94/4, Dariba Kalan, Delhi was put to auction on Augast 23, 1971. The highest bid was for Rs. 95,000. 00. On August 26, 1971, a sum of Rs. 23,750. 00 was deposited by the auction-purchaser Gulzari Lal Jain with the Court-Auctioneer, who in turn deposited it with the Administrative Sub Judge, Delhi. The balance of the auction money of Rs. 71. 250. 00 was deposited with the Administrative sub Judge, Delhi on 31-8-1971. Out of the amount of Rs. 95,000. 00 , the decree in suit No. 157 of 1968 (Execution case No. 17 of 1970) has been satisfied by payment of a sum of Rs. 78,662. 92. Rs. 2. 500. 00 is payable for court auction out of which 80 per cent has been paid to the Court-auctioneer and balance of 20 per cent deposited to the account of the Government. The balance of Rs. 13,837. 08 is lying with the Aministrative Sub Judge, Delhi. All the four rival decree-holders are claiming this amount lying with the Administrative Sub Judge, Delhi. It would be necessary to give facts relating to the decrees and the execution petition of the rival decree-holders.
( 3 ) SO far as execution Cases Nos. 53 of 1972 and 54 of 1972 are concerned, the relevant dates are the same. In the case of Ramesh Chander Jain, however, the decree is for Rs. 5,206. 25 paise, plus costs and in the case of Smt. Manju Jain the decree is for Rs. 5,225. 25 plus costs. Both these decrees were passed by the Subordinate Judge, Delhi on 31-8-1970. On September 7, 1970, applications for execution were filed praying for attachment of property No. 89 to 95/4 situate at Dariba Kalan, Delhi. On September 8, 1970 the Subordinate Judge passed orders for attachment of the said property. On September 18, 1970 the attachment was effected by court-bailiff at the spot by pasting the courts notice attaching the said property and by beat of drum. Thereafter, applications were made under Order 21 Rule 66 of the Code of Civil Procedure for drawing proclamation of sale. Shri Kishan Mohan Kapoor and others filed objections that the said property which was sought to be sold by these decree-holders was already under mortgage with them and a decree had been granted by the High Court of Delhi. On December 4, 1970, however, the objectors were n
