Limitations for issuance of injunctions.

One Unnamalai Achi filed a suit Original Suit No. 44 of 1966 on the file of the Court of the Subordinate Judge of Devokattai, against one Murugappa Chetty for recovery of a sum of Rs. 26,560 on the basis that she had deposited a sum of Rs 21,136-50 with Murugappa Chetty repayable with compound interest Murugappa Chetty died during the suit and defendants 2 to 5 were impleaded as his legal representatives. Defendants 3 and 4 allowed the suit to be decreed ex parte. The other two merely put the plaintiff to proof of the claim. The learned Subordinate Judge who tried the suit held against the plaintiff and dismissed the suit. Appeal Suit No. 416 of 1967 has been preferred by the plaintiff Unnamalai Achi against the four legal representatives.

In the meantime, one Ramaswami Chetty who obtained a decree in Original Suit No. 3 of 1965 on the file of the Court of the Subordinate Judge, Devakottai against the said Murugappa Chetty for a sum of over Rs. 25,000 on 25th January 1965, filed Execution Petition No. 86 of 1965 for recovery of the amount by sale of the house of Murugappa Chetty in Palangudi in Ramanathapuram District.

Civil Miscellaneous Petitions Nos. 7599 and 7600 of 1967 have been filed by Unnamalai Achi against the said Ramasawami Chetty. Civil Miscellaenous Peti-tion No. 7599 of 1967 is for an injunction restraining Ramaswami Chetty from selling the house in execution of the decree in Original Suit No. 3 of 1965 pending disposal of Appeal Suit No. 416 of 1967. Civil Miscellaneous Petition No. 7600 of 1967 is an application to implead the said Ramaswami Chetty as a respondent in Appeal Suit No. 416 of 1967. The petitioner states in her affidavit that besides herself and the said Ramaswami Chetty, there are also other creditors of Murugappa, that the total debts due from the deceased Murugappa Chetty would be in the region of Rs 80, 000 that the house if sold in Court auction would fetch only about Rs. 50 000 that all the creditors would have to share the sale proceeds rateably and that in order to enable the creditors to obtain rateable distribution(under section 73, Civil Procedure Code), it will be necessary to allow time to creditors like Unnamalai Achi to obtain decrees and file execution petitions before the assets are received by the executing Court. If they are not enabled to do so, Ramaswami Chetty alone would take away the entire amount due to him in execution of his decree and the claims of persons like Unnamalai Achi will be prejudiced. Impliedly the affidavit proceeds on the assumption that the house in Palangudi is the only property of Murugappa Chetty and that was explicitly stressed during arguments by Unnamalai Achi’s learned Counsel Sri V. V. Raghavan Section 73 (1), Civil Procedure which is relied on so far as it is material, states:

“Where assets are held by a Court and more persons than one have, before the receipt of such assets, made application to the Court for the execution of decrees for the payment of money passed against the same judgment-debtor and have not obtained satisfaction thereof, the assets, after deducting the costs of realisation shall be rateably distributed among all such persons.”

The point which is emphasised is that the execution petition should be filed before the receipt of assets in the executing Court. For that purpose, Unnamalai Achi should first obtain a decree in Appeal Suit No. 416 of 1967. It is urged by her learned Counsel that the’ defendants in Original Suit No. 44 of 1966 did not adduce any evidence and that there is every probability of Appeal Suit No. 416 of 1967 being allowed. He prays that the hearing of the appeal may be expedited.

A temporary injunction Was granted on 30th June, 1967 restraining Ramaswami Chetty, from proceeding with the execution. He has filed Civil Miscellaneous Petition No. 9140 of 1967 to vacate the injunction. He states in his counter-affidavit that it is a strange proposition of law that a creditor like him should wait till the other cr