Bapna, J.—This is second appeal by the judgment-debtors in execution proceedings.

2. Kanhaiyalal respondent had a decree against the appellants Brij Mohanlal, Bherunlal and Rameshwar for recovery of money, which he had obtained from court of Munsif, Dausa, on the 11th of January, 1935. Various applications for execution of the decree were made, and the last one was presented on the 7th of April, 1953. The judgment-debtors filed an objection that the decree-holder had not presented any application for execution after 1944, and, therefore, the present application was barred by time. This subsequently boiled down to an objection that an application which had been presented on 16th March, 1 45, by the decree-holder was not an application in accordance with law, and if that application was taken out of consideration, the subsequent applications and the application now presented were time-barred. According to the facts stated in the judgment of the two courts, and which are not disputed, one Shyamlal had obtained a decree from the court of Munsif, Dausa, against the same judgement-debtors. Shyamlal had put his decree in execution for attachment and sale of the judgment-debtors property. While proceedings were being held in the application for execution of Shyamlals decree, Kanhaiya Lal decree-holder made an application on 16th March, 1945, in Form No.6, Appendix E, C. P. C., as required by O. XXI, r. 11 of the Code. In column No. 10 of the Form the relief claimed by the decree-holder Kanhaiyalal was that the property of the judgment-debtors was being sold in the other execution case, and the amount thus realised may be rateably distributed to the decree-holder Kanhaiyalal. The learned Munsif held that the execution application filed by the decree-holder, in which the relief of rateable distribution was claimed was one which could be taken as a step in aid of execution so as to save limitation, for the subsequent applications were within time under Art. 182(5) of the Limitation Act. On appeal, the same view was upheld.

3. Learned counsel for the judgment-debtors contended that the property of the judgment-debtors did not come to be sold in execution of the decree of Shyamlal, as a certain compromise took place between Shyamlal and the judgment-debtors, and. therefore, the petition for rateable distribution under sec. 73, even if made, was not within the four corners of that section. It was urged that the stage for rateable distribution only arose after the assets were realised, but if no assets came to be realised, then an application under sec. 73 was not competent. It was further argued that if an application under sec. 73 was incompetent, it could not be treated as a step in aid of the execution. Learned counsel relied on Umar Sharif vs. Rabda(1) It was finally contended that the asking for rateable distribution is as good as asking for rateable distri-bution of money lying in court, and an order for payment of such money was only a ministerial order. Reliance was placed on M. Noorul Hoda vs. Rai Nohar Prasad Verma (2) and Amolak Chand vs. Hoshiar Singh (3). It was urged that the lower courts had erred in relying on Balaji vs. Gopal (4) for the proposition that an application for rateable distribution could be treated as a step in and of execution.

4. In may opinion this appeal has no force. While there is no doubt that the order directing rateable distribution comes only when the assets are realised, but the right for ratable distribution arises not when the assets are realised, but when there are applications of different decree-holders for execution of their decree for payment of money against the same judgment-debtor, and these applications are filed in court before the receipt of the assets. An order for rateable distribution is not a ministerial order, for the court has to take into consideration the various applications and to apply its judicial mind in-order to find whether the conditions laid down in sec. 73, C. P. C. had be

Click Here to Read the rest of this document