The court clarified the application of S.73 of the CPC, emphasizing that the court cannot inquire into the validity of a decree and that a person claiming rateable distribution must have applied for execution.

S. Sankarasubban, J.

The Civil Revision Petition is filed challenging the order dated 3.4.96 in cheque Application in LAR 6 of 1985 on the file of the Subordinate Judge's Court, Cherthala. The revision petitioner is the decree holder in O. S.131 /91 on the file of the Sub Court, Sherthala. That decree is dated 13.12.93. That decree was obtained against the first respondent for recovery of money due from him. The first respondent had some property which was acquired by the Government under the provisions of the Kerala Land Acquisition Act. A reference was made under the Land Acquisition Act as LAR 6/85 and an award was passed for enhancement of compensation on 31.1.1987. The petitioner attached the decree passed by the Sub Court, Chethala in LAR 6/ 85. This was on 9.5.91. When the first respondent took out execution of the decree obtained by him against the State, the revision petitioner also moved for execution. The amount was deposited by the Government. The revision petitioner sought execution of the decree by payment to him of the amount due from the second respondent by filing E.P. 8/95. That E.P. was disposed of on 30.1.96 in the following terms.

"No objection for the decree holder in E. A. 106/96 to allow the Execution Petition. E. A. allowed. The decree holder in O.S.131/91 is allowed to withdraw the amount in deposit in LAR 6/85".

Subsequently the petitioner filed the cheque application. When the cheque application came up for orders on 3.4.96, a representation was made on behalf of the third respondent that the third respondent had attached the decree in LAR 6/85 in the suit O.S.273/91. On such representation, the court below passed the impugned order. The order reads as follows:

"There is attachment in O.S.273/91. Hence Application dismissed."

The third respondent has filed a counter. The third respondent has contended that he had instituted O.S.231/91 against the present first respondent and he has obtained a decree. He has also attached the decree in LAR 6/85. He further contended that the decree obtained by the petitioner against the first respondent was a conclusive one. Hence his contention is that the petitioner is not entitled to withdraw the amount.

2. The learned counsel for the third respondent admitted that no execution petition has been filed by the third respondent.

3. After hearing the counsel for the petitioner and the counsel for the respondents, I am of the view that the CRP has to be allowed and the impugned order set aside.

4. The learned counsel for the third respondent has very vehemently argued that the Executing Court has to consider the question whether the decree obtained by the petitioner against the third respondent was a collusive one, eventhough it is admitted that no contention was raised before the executing court. He further contended that since he has attached the decree, he has got a right to challenge the decree obtained by the petitioner against the first respondent. It is clear under S.73 of the C.P.C. that to claim rateable proportion the person should have applied for execution. A mere attachment does not give any right.

5. In Chindha v. Chhaganlal AIR 1928 Bombay 545 it was held as follows:

" A person who has merely obtained an attachment before judgment cannot put up a claim for rateable distribution unless he has obtained a decree and made an application for execution."

To the same position, it is the decision reported in S.M. Thakkar v. A.K. Hazra, AIR 1979 Patna 38, wherein it was held as follows:

"Simply because a decree holder has obtained an attachment before judgment of his debtor's property, lie will not thereby become entitled to get rateable distribution under S.73, unless like other decree-holders, he applies for execution after getting the decree, and his execution application is made before the receipt of the assets".

6. The learned counsel for the petitioner relied on the decision of the Supreme Court reported in S.P. Chengalvaraya Naidu v. Jagannath (1994) 1 S