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Manora Bai v. Sultan Bakath Begum And Others
Summary of Legal Opinion
Factual and Procedural Background
Five decree-holders obtained money decrees against one Sultan Bakath Begum in the City Civil Courts. The petitioner obtained a decree for Rs. 15,575-20 np; the 1st respondent, Ama Ravamma, obtained a decree for Rs. 27,435-20 nP. Another decree-holder, Keshagiri Rao, obtained a decree for Rs. 8,000 against the same judgment-debtor from the 1st Additional Judge, City Civil Court; an order of rateable distribution was made in his favour in the lower court proceedings, but he was not made a party to the present revision petition.
Four decree-holders (excluding the 1st respondent) applied in their execution petitions for attachment of an amount held by the receiver appointed by the High Court in C.S. No. 13 of 1958 (in which the judgment-debtor was a defendant). The receiver sent a cheque for Rs. 16,407 to the attaching Court on 24-7-1962; the cheque was cashed on 31-7-1962 by the attaching Court.
The 1st respondent filed E.P. No. 17/62 on 20-7-1962 seeking execution of her decree and initially sought attachment of the amount in the hands of the High Court receiver; that petition was returned on 23-7-1962 on the ground that she had not obtained permission from the High Court. She re-presented a modified execution petition on 26-7-1962, changing the relief sought to seek attachment of movable property not in the hands of the receiver and also asking for rateable distribution.
A dispute arose whether the 1st respondent was entitled to a share in the rateable distribution of the amount received from the receiver. The IVth Additional Judge, City Civil Court, Hyderabad, by order dated 29-12-1962, directed pari passu distribution of the assets among all five decree-holders. This revision petition challenges that order.
Legal Issues Presented
- Whether the 1st respondent (Ama Ravamma) is entitled to share in a pari passu (rateable) distribution of the amount received from the High Court receiver, despite not having attached the money in the receiver's hands.
- Whether the 1st respondent's execution petition should be treated as filed on 20-7-1962 (the date of first presentation) or only on 26-7-1962 (the date of re-presentation after the petition was returned), for purposes of Section 73 of the Civil Procedure Code (CPC) and related rules of Order XXI.
- Whether the revision petition is maintainable in the absence of Keshagiri Rao, a decree-holder who was party to the distribution order under Section 73 and who was not impleaded in this revision.
Arguments of the Parties
Arguments advanced by the four decree-holders (petitioners in execution)
- They contended that the amount sent by the High Court was intended to satisfy the decrees of the four decree-holders who had attached the funds, and therefore the 1st respondent was not entitled to any share of that amount.
- They further argued that the 1st respondent had not complied with the procedural requirement under Section 73 of the CPC by applying before the assets were received by the attaching Court; therefore she could not claim rateable distribution.
Preliminary objection raised by counsel for the 1st respondent
- Mr. A. Raghuveer, counsel for the 1st respondent, contended that Keshagiri Rao (one of the five decree-holders and a party to the order under Section 73) was not made a party to this revision; since he is a necessary party, the revision must fail for non-impleading.
Position of the 1st respondent (as reflected in the record)
- The 1st respondent initially applied (20-7-1962) for attachment of the money in the hands of the High Court receiver; that petition was returned for lack of permission from the High Court. She re-presented the execution petition (26-7-1962) with amended relief, stating that because the cheque had been received from the receiver, it was not necessary to attach money in the receiver's hands and instead sought attachment of movable property not in the receiver's possession, along with a claim for rateable distribution.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Venkata Subbaiah v. Adinarayana, AIR 1954 Andhra 44 | Support for the proposition that assets sent in cheque form are to be treated as received by the attaching Court only when the cheque is cashed (i.e., the date of actual receipt of assets). | The court relied on this decision to hold that the assets were deemed received by the attaching Court on 31-7-1962 when the cheque was cashed, not on 24-7-1962 when the cheque was sent. |
| Deva Dutta and Sons v. Mitter and Sons, AIR 1939 Cal 530 (at p. 535) | Support for the same proposition regarding the date on which assets in cheque form are deemed received by the Court. | The court cited this authority alongside Venkata Subbaiah to justify treating 31-7-1962 (date of cashing) as the date of receipt for Section 73 purposes. |
Court's Reasoning and Analysis
Preliminary Objection - Necessary Party:
The court accepted the preliminary objection that Keshagiri Rao, a decree-holder who had been party to the earlier order under Section 73, was not impleaded in this revision petition. The court reasoned that an order of distribution pari passu under Section 73 is an order between all decree-holders; the order had become final as to Keshagiri Rao, and any order inconsistent with that finality as regards him would be legally untenable. Because he was a necessary party and was not before the court, the court held that an effective order under Section 73 could not be made in his absence. On this short ground alone, the revision petition must fail.
Merits (addressed despite preliminary objection):
- On the first substantive contention (that the four decree-holders alone were entitled to the amount because the custody Court had sent the amount to satisfy their attachments): The court examined Order XXI Rule 52 of the CPC. That rule requires, where property is in the custody of another Court, that attachment be made by notice to that Court and that any question of title or priority (between a decree-holder and any other person other than the judgment-debtor) be determined by the custody Court. The court noted there was no claim before the custody Court (the High Court) by any of the four decree-holders asserting title or priority; accordingly the custody Court had no occasion to decide such matters and in fact did not decide them. The custody Court merely forwarded the amount which it had in its custody. The attaching Court, upon receipt, is the court called upon to decide questions under Section 73. Therefore, the court found no force in the argument that the four decree-holders alone were entitled to the money and that the 1st respondent was excluded.
- On the second substantive contention (that the 1st respondent had not complied with Section 73 by applying before the assets were received by the attaching Court): The court held that the cheque, though received on 24-7-1962, was cashed only on 31-7-1962, and assets are to be deemed received by the attaching Court on the date the cheque was cashed. The court relied on the cited precedents to support this proposition. Thus, for Section 73 purposes the assets were received on 31-7-1962.
- On whether the 1st respondent's original petition should be treated as filed on 20-7-1962 or only as of 26-7-1962 (after re-presentation): The court examined Order 21 Rule 17 of the CPC, particularly sub-rule (2), which provides that when an application is amended under sub-rule (1) it shall be deemed to have been presented on the date it was first presented. The court further analysed Rule 17(1) and Rules 11 to 14 of Order XXI, concluding that the executing Court may require defects to be remedied within a fixed time and may reject applications only when defects under Rules 11 to 14 apply and are not remedied. The court found that the 1st respondent's original execution petition adequately complied with Rule 11 (which prescribes the form of the written application), because the petition described the mode in which court assistance was required (attachment of money in the hands of the receiver). The fact that the executing Court could not then grant that relief without permission from the High Court did not render the petition inconsistent with Rule 11 or justify returning it under Rule 17. Consequently, the court held the order returning the application should be ignored and that the execution petition should be treated as first presented on 20-7-1962; alternatively, in any event, the re-presentation on 26-7-1962 is deemed to relate back to 20-7-1962 under Rule 17(2).
- From these conclusions the court found that the 1st respondent satisfied the requirements for claim to rateable distribution under Section 73: it is not necessary for every decree-holder to have physically attached the property in the custody Court; it suffices that an application for execution be filed before the assets are actually received by the attaching Court. Because the assets were deemed received on 31-7-1962 and the 1st respondent's application was effectively presented on 20-7-1962 (or deemed so), the 1st respondent was entitled to pari passu distribution.
Holding and Implications
Holding:
THE REVISION PETITION IS DISMISSED. The court dismissed the revision petition with costs and recorded "Petition dismissed."
Implications (direct effects stated in the opinion):
- The order of the IVth Additional Judge, City Civil Court, Hyderabad dated 29-12-1962 directing pari passu (rateable) distribution among the five decree-holders remains effectively undisturbed by this revision; the 1st respondent is entitled to a share in that distribution under Section 73 of the CPC, for the reasons explained by the court.
- The revision fails on a procedural ground (non-impleading of Keshagiri Rao, a necessary party), which alone justified dismissal; the court accordingly observed that it could not make an effective order under Section 73 in his absence.
- No broader or novel precedent beyond the application of the cited authorities and established rules of Order XXI and Section 73 is announced in the opinion; the decision resolves the dispute between the parties on the facts and law presented and dismisses the revision with costs.
End of summary based exclusively on the provided opinion.
1. This revision petition is directed against an order of the IVth Additional Judge, City Civil Court, Hyderabad given on 29-12-1962.
2. The essential facts are that five decree-holders obtained money decrees against one Sultan Bakath Begum from the City Civil Courts. The petitioner obtained a decree for Rs. 15,575-20 np. The 1st respondent Ama Ravamma obtained a decree for Rs. 27,435-20 nP.
3. We are not concerned with regard to the decree amounts of the other decree-holders. It is however necessary to mention that one Keshagiri Rao, who had obtained a decree for Rs. 8,000 against the same judgment-debtor, from the 1st Additional Judge, City Civil Court and in whose favour the order of rateable distribution is made, is not made a party to this revision petition. The four decree-holders except the 1st respondent applied in their execution petitions for the attachment of a certain amount held by the receiver appointed by the High Court in C.S No. 13 of 1958. The Judgment-debtor was one of the defendants in the said suit. The amount thus attached was sent to the attaching Court in the form of a cheque for Rs. 16,407 on 24-7-1962. The cheque was cashed on 31-7-1962 by the attaching Court.
4. While so, the 1st respondent applied for the execution of her decree in E.P No. 17/62 on 20-7-1962. In her petition, she wanted that the amount in the hands of the receiver in C.S No. 13 of 1958 on the file of the High Court should be attached. Her petition was returned on 23rd of July, 1962 on the ground that she has not obtained permission from the High Court before which C.S No. 13 of 1958 was pending. Without obtaining any such permission, the decree-holder re-presented the execution petition within the time permitted for re-presentation on 26-7-1962. In this application, she modified the relief which she had earlier claimed. She now stated that since the cheque has been received from the receiver in C.S No. 13 of 1958, it is not necessary to attach the money in the hands of the receiver. She therefore, apart from the prayer of rateable distribution, asked for attachment of moveable property of the judgment-debtor not in the hands of the receiver.
5. A dispute arose whether in these circumstances the 1st respondent is also entitled to her share in rateable distribution in the amounts received from the receiver. It was contended by the four decree-holders that the 1st respondent is not entitled to such amounts, firstly because the amount was sent by the High Court in order to satisfy the decrees obtained by the four decree-holders who had attached the amounts and not to satisfy the amount of the decree of the 1st respondent, and secondly the 1st respondent had not applied as is required under Section 73 of the CPC before the assets were received by the attaching Court. The Court below negatived both these contentions and directed pari passu distribution of assets amongst all the five decree-holders through its order dated 29-12-1962. It is this order that is now challenged in this revision petition.
6. The same two contentions are raised before me in this revision. Before I deal with these two contentions, I must dispose of a preliminary objection raised by the learned counsel for the 1st respondent. The contention of Mr. A. Raghuveer, the learned counsel for the 1st respondent, is that Keshagiri Rao, one of the five decree-holders who was a party to an order under Section 73 of the CPC by the lower Court, has not been made a party to this revision petition. Since he is a necessary party, the revision must fail for not impleading him. I think the preliminary objection is well founded. The order of the distribution pari passu under Section 73 of the CPC is an order between all the five decree-holders. The order has become final in so far as Keshagiri Rao is concerned Any order inconsistent with the finality of that order in so far as Keshagiri Rao is concerned will be bad in law. It is not denied that Keshagiri Rao is a necessary party to the revision. In his absence therefore it is not possible to make any effective order under Section 73 of the CPC. The revision therefore must fail on this short ground alone.
7. In deference, however, to the arguments advanced before me by the learned Advocates for the parties, I would deal with those two contentions. In so far as the first contention is concerned, it is no doubt true that the attachment of an amount in the custody of a Court has to be made in accordance with Order XXI Rule 52 of the CPC. According to that rule, where the property attached is in the custody of any Court, the attachment shall be made by a notice to such Court requesting that such property may be held subject to the further orders of the Court from which the notice is issued. The first proviso to that rule enjoins that where such property is in the custody of a Court, any question of title or priority arising between the decree-holder and any other person not being the judgment-debtor, claiming to be interested in such property by virtue of any assignment, attachment or otherwise, shall be determined by such Court. It is common ground that there was no claim made by anyone of the four decree-holders before the custody Court, that is to say, the High Court, claiming title to the attached property or priority in regard to his payment. The custody Court therefore could not have decided any such question under Order XXI Rule 52 of the CPC and in fact there is no determination of any such question by the custody Court. The custody Court merely sent the amount which was attached by the attaching Court in the four decrees obtained by other decree-holders than the 1st respondent. It is only when the amount is received by the attaching Court that it would be called upon to decide questions falling within the purview of Section 73 of the CPC. I do not therefore think there is any force in the contentions of the four decree-holders, that they alone are entitled to get this amount and not the 1st respondent who had not attached the money in the hands of the receiver. For the purpose of section 73, it is not necessary that every decree-holder should attach the property it is enough, as will be seen later on, if he flies an application for execution before the assets are actually received by the attaching Court. Section 73 does not require more than that. It was not therefore necessary for respondent No. 1. In order to be entitled to a rateable distribution under section 73 to have attached the money in the hands of the receiver as the other decree-holders did. In spite of the fact that the four decree-holders had attached the property, the 1st respondent is entitled to a rateable distribution under section 73 provided she satisfied the requirements of section 73. It is obvious that the custody Court could not have decided the question of rateable distribution falling under section 73. It is the attaching Court alone that can do it and that is what actually has been done in this case. I experience therefore no difficulty in rejecting the first contention.
8. Coming then to the second contention, it is true that the cheque was received be the attaching Court on 24-7-1962. But lit must be remembered that it was cashed only on 31-7-1982. The assets therefor shall be deemed to have been received by the Court only on 31-7-1962. This view is supported by the following two decisions: Venkata Subbaiah v. Adinarayana, AIR 1954 Andhra 44 and Deva Dutta and Sons v. Mitter and Sons, AIR 1939 Cal 530 at p. 535.
9. Moreover, I am not impressed by the argument that E.P No. 17/62 filed by the 1st respondent shall be deemed to have been filed only on 26-7-1962 and not on 20-7-1962. In the said E.P, it is no doubt true that the decree-holder asked for the attachment of the money in the hands of the receiver without obtaining any permission of the High Court which had appointed the receiver in C.S No. 13 of 1958. On that ground, the E.P was returned on 23-7-1962. It was however re-presented on 26-7-1962 after necessary amendments. The question therefore is whether such a petition would be deemed to have been filed for the first time on 26-7-1962. Any answer to this question must depend upon the construction of Order 21 Rule 17 of the CPC. According to sub-rule (2) of that rule, where an application is amended under the provisions of sub-rule (1), it shall be deemed to have been an application in accordance with law and presented on the date when it was first presented. Assuming therefore that a defective application was presented on 20-7-1962, but when it was represented after removing the defects, such an application should be deemed under sub-rule (2) of Rule 17, to have been presented on 20-7-1962. That apart, I do not think the return of the application itself was in accordance with law. What Rule 17(1) says is that on receiving an application for the execution of a decree as provided by Rule 11, sub-rule (2), the Court shall ascertain whether such of the requirements of rules 11 to 14 as may be applicable to the case have been complied with, and, if they have not been compiled with, the Court may reject the application if the defect is not remedied within a time to be fixed by it. It will thus be plain that if the application is not in accordance with rules 11 to 14 of Order 21, it is only then that the executing Court can ask the decree-holder to remedy such defect by fixing some time within which the defect must be remedied, and in case such defects are not remedied within the prescribed time, the executing Court can reject such a defective application. It will have been seen that the defect must come within the purview of anyone of the Rules 11 to 14. Admittedly Rules 12 to 14 are not attracted to the facts of the present case. It is to Rule 11 therefore that one must look to find out whether the relief claimed originally in the present execution Section was in any way contrary to Rule 11, sub-rule (2) of Rule 11 prescribe the form of the written application for execution According to clause (j), the made in which the assistance of the Court is required has to be mentioned. It is clear from the relief claimed by the decree-holder that she wanted to attach the money in the hands of the receiver. To such a case, sub-clause (ii) of clause (j) would apply. The mode therefore in which the assistance of the Court was sought by the petitioner is mentioned in the petition that the money should be attached in order to satisfy her decree. Sub-clause, (v) of clause (j), which is a residuary clause, would obviously not apply because a specific clause applied in that view of the matter, the execution petition filed by the 1st respondent was perfectly in accord with Rule 11 Merely because the relief could no. 1 have been granted by the executing Court as no permission of the High Court was obtained, it cannot be argued that the execution petition is, inconsistent with rule 11 of Order XXI of the CPC. It is one thing to say that the form of application is not in accordance with R. 11 and it is quite a different thing to say that the relief claimed although in accord with Rule 11 cannot be granted by the executing Court because of certain legal objections. When the execution petition thus satisfied the requirements of Rule 11. I fail to see how it could have been returned for removal of defect under Rule 17. The order returning the execution petition therefore would have to be ignored and it will have to be construed that the execution petition was filed validly on 20-7-1962. In any case, as stated earlier, the petition was re-presented on 26-7-1962 which according to R. 17(2) would be deemed to have effect from 20-7-1962 when it was first presented, and since I have held that the assets actually were received on 31-7-1962 and not on the date when the cheque was received there remains no force in the contention that since the 1st respondent had not applied before the assets were actually received by the attaching Court, she was not entitled to any pari passu distribution of the amount. The second contention also therefore is rejected.
10. As no other argument was advanced, the result is that the revision petition fails and is dismissed with costs.
AKJ/D.V.C
11. Petition dismissed.
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