Petitioner entitled to seek rateable distribution of assets per legal provisions despite court disputes over execution jurisdiction.

JUDGMENT

The petitioner, who obtained a charged decree against the second respondent as per Ext.P2 decree passed by the Sub Court, Kottayam, is aggrieved by the execution proceedings pending before the Sub Court, Muvattupuzha, wherein the first respondent is proceeding against the said judgment-debtor for execution of his decree, without satisfying the petitioner’s decree. According to the petitioner, he is entitled to claim rateable distribution of the assets held by the said court.

2. The petitioner is a blind person, as is evident from Ext.P7. The first respondent herein filed Ext.P5 application before the Sub Court, Muvattupuzha, seeking to implead the petitioner in E.A.No.168/2014 in E.P.No.28/2014. The grievance of the petitioner is that while disposing of the said application as per Ext.P6 order, the learned Sub Judge held that the decree-holder/first respondent herein has every right to seize the amount attached as per E.A.No.137/2014 from the possession of the garnishee. The petitioner claims that his decree also is to be satisfied out of the said amount.

3. Heard Sri.B.Krishna Mani, the learned counsel appearing for the petitioner and Sri.S.Vinod Bhat, the learned counsel appearing for the respondents.

4. As per Section 73 of the Code of Civil Procedure , when assets are held by a court and more persons than one have made applications to the court for execution of decrees for payment of money passed against the same judgment-debtor, such assets shall be rateably distributed among all such persons, provided the applications are made before the receipt of the assets. The said provision has to be read along with Section 63 of the Code, which stipulates that where property is under attachment in execution of decrees of more courts than one, and one of such courts is not inferior in grade to the others, the court under whose decree the property was first attached shall receive and realise such property. Sub-section (2) of Section

63 further clarifies that proceedings taken by a court executing one of such decrees shall not be deemed invalid merely because the court proceeded otherwise than in accordance with Section 63 (1).

5. In the present case, the petitioner was only sought to be impleaded in an execution application pending before the Sub Court, Muvattupuzha, which, in my opinion, would serve no effective purpose. However, during the course of hearing, the learned counsel appearing for the petitioner submitted that the petitioner is at least entitled to seek rateable distribution of the assets, and hence the Original Petition might be disposed of by giving him an effective opportunity to make necessary application in that regard.

6. Admittedly, the petitioner has not so far filed an application under Section 73 of the Code of Civil Procedure . The question that which court should entertain an application for rateable distribution when the assets are held by one court while the decrees are passed by different courts has long been a vexed issue. On this aspect, divergent views have been expressed by different High Courts. The Madras High Court, in Chettiar v. Chettiar ( AIR 1973 Mad 313 ), held that an application for execution must be filed before the very court which has realised and is holding the assets, and that failure to do so would disentitle the applicant from claiming rateable distribution.

7. The Bombay High Court, however, in Dhirenda v.

Virabhadrappa (AIR 1935 Bom 176), adopted a different view. It held that it is sufficient if such an application is made before an “appropriate court”, and that it need not necessarily be filed before the court actually holding the assets. The Court observed that Sections 63 and 73 of the Code must be read harmonious