Claim for retable distribution.

This is a revision under section 115 of the Civil Procedure Code, from an order dismissing the petitioner’s application for rateable distribution under section 73 of the Civil Procedure Code. Though the petitioner can pursue his claim by way of a suit, as this revision petition has been pending in this Court from 1962, and the question for decision is a simple one, it not being disputed that the matter would otherwise come under section 115 of the Civil Procedure Code, the faintly put forward preliminary objection is overruled.

The petitioner obtained a decree against the defendant in O.S. No. 44 of 1959 on the file of the Subordinate Judge’s Court, Coimbatore, and for the realisation of a sum of about Rs. 79,264 due under the decree he had the decree transferred to the Subordinate Judge’s Court, Devakottai, for execution, and filed therein, E.P. No. 25 of 1960 on 2nd February, 1960 for attachment and sale of certain immovable properties. Attachment was ordered on 5th February, 1960, and order for sale was made on 19th July, 1960, the properties to be proclaimed and sold on 5th September, 1960. It is seen from the records of execution that there was no sale, and subsequently on 5th July, 1961 on application the upset price was reduced, and the properties were directed to be proclaimed and sold on 4th September, 1961. There were no bidders even at this sale, and the properties were not sold ; and on 7th September, 1961 the execution petition was adjourned to 14th September, 1961 for steps. On 14th September, 1961 with the endorsement “ petition not yet filed” the matter was adjourned to 20th September, 1961. On 20th September, 1961 the execution petition was dismissed with the following endorsement thereon: “ No petition filed. Petition dismissed. Attachment to continue for four months” . Meanwhile, the properties were attached in execution of another decree against the same judgment-debtors in E.P. No. 89 of 1961 in O.S. No. 31 of 1959, on the file of the Subordinate Judge’s Court, Devakottai, and the properties were sold on 18th December, 1961, for Rs. 5,000, and the proceeds brought into Court. It is the claim of the petitioner by E.A. No. 66 of 1962 to share rateably with the proceeds thus brought in, that has been rejected on the ground that there was no subsisting execution pending, when assets were realised. It should be noted that in terms of the order dated 20th September, 1961, directing continuance of the attachment for four months, the properties sold continued under the attachment at the instance of the petitioner also, the attachment being valid upto 20th January, 1962. The sale in E.P. No. 89 of 1961, which brought in proceeds into Court, was pending this attachment.

The petitioner contended in the lower Court, on the basis of a decision of this Court in Krishnaswamy Iyengar v. Vedavalli Ammal1, that the very fact of the attachment being continued established that the order of dismissal of his execution petition was an order for statistical purposes, and in fact and in law it must be deemed to be pending when proceeds were brought into Court. This contention did not find acceptance the lower Court placing reliance on a decision of the Nagpur High Court in Gulab Chand v. Dongarmal2. The lower Court has taken the view that the dismissal of the petitioner’s execution petition was one for default on the part of the decree-holder and that there was a termination of the execution petition filed by him, despite the continuance of the attachment. In my view this runs against the current of decisions of this Court. So far as the decision of the Nagpur High Court in Gulabchand v. Dhongarmal2, is concerned it would be apparent from a perusal of it, that the decision rested on the wording of Order 21, rule 57 of the Civil Procedure Code, as amended by that Court in 1930. Referring to the decision of some other High Courts that had been cited, Pollock, J., observes thus in that case:-

“ Several decisions of other Court