Bharat Paint Mart, Hanuman Chawak Dehra Dun v. Bhagwati Devi

M. Lal, J.:— This civil revision filed by the decree-holder arises out of an order refusing to grant rateable distribution under Sec. 73, C.P.C Smt. Bhagvati Devi and others obtained a decree against the Judgment-debtor and got the money in deposit in favour of the Judgment-debtor attached from the City Board, Mussoorie through the Civil Judge, Dehra Dun. The money was received by means of cheque on 20th August, 1957 and the amount was Rs. 1467 and odd. During the mean time a decree in favour of the petitioner was passed from the Munsif's court Dehra Dun on 19th December, 1956. He put this decree into execution on 14th May, 1957 in the Court of the Munsif making two prayers. The first was that the money deposited with the custodian should be attached while the second was that an order for rateable distribution in suit No. 54 or 1954 i.e in the decree of Smt. Bhagwati Devi and others, be made. No attachment of the money was made nor the execution was transferred to the Civil Judge after the order of rateable distribution. It appears from the Judgment that the order, which was passed by the Munsif, of rateable distribution was, “to rateable distribute the money attached with the custodian.” A Robkar, which is on the file, however, goes to show that a general Robkar for rateable distribution was issued towards the amount held by the Civil Judge in suit No. 54 of 1954 without mentioning whether it was for rateable distribution out of the custodian money or out of the money received from the City Board. The execution was also not transferred to the Civil Judge's court and remained pending in the Munsif's Court.

2. The prayer for rateable distribution made by the present applicant, decree-holder, was rejected by the Civil Judge on three grounds. Firstly, because no attachment had been made, secondly, because no execution application had been made in his court as required by Sec. 73, C.P.C and thirdly because the order of rateable distribution related only to the money attached from the custodian. It is against this order that the present revision had been filed.

3. I have heard learned counsel for the parties. The order of the Civil Judge concludes the matter on the question of fact, though on point of law some of the observations made by the Civil Judge are not quite correct so far as the question of fact goes it appears that according to the order passed in the execution file by the Munsif rateable distribution was ordered only in the money attached from the custodian and not in the money which is now the bone of contention i.e the money received through cheque from the City Board, Mussoorie. This itself is sufficient to dispose of the revision.

4. So far as the question of law goes, the essential conditions for the application of Sec. 73 are (1) the assets must be held by the Court; (2) the decrees obtained by the decree holder and the attaching creditor must be decrees for payment of money; (3) such decrees should have been obtained against the same judgment-debtor; (4) the creditor claiming rateable distribution must have applied for execution to the court by which the assets are held; and (5) such an application must have been made before the assets are received by the Court.

5. The object of the section firstly is to prevent unnecessary multiplicity of execution proceedings and secondly to secure an equitable administration of the property by placing all the decree-holders on the same footing.

6. In case the applications are pending in different courts either there should be an attachment as required by Sec. 63 or if there is no attachment then all the execution applications must come before the same court. In the case of attachment by several creditors the superior court holds the sale and then a rateable distribution of the assets can be made on a mere prayer in that court. This view is supported by the authority Sarju Ram Sahu v. Pratap Narain.1 In that case attachment of the property had been made in all the decrees and it was held that the holders of the decrees of the inferior court were entitled under Sec. 73 read with Sec. 63, C.P.C to a rateable distribution without getting their decrees transferred to the superior court or formally applying for execution in that court. That decision does not help the applicant at all because there was no attachment in this case as required by Sec. 63. The case is covered purely by Sec. 73 and in that case what was necessary was either the execution application should have been made in the Court which held the money or the decree should have been transferred to that court for execution or if the decree was executed in the inferior court the execution file should have been transferred to the superior court after the order of rateable distribution, which would have taken as execution of the decree by the superior court. This was also not done in this case. The authority of Suraj Lal Bal Krishna Das v. Padrauna Raj Krishna Sugar Works . 1961 A.L.J 435. is also of no avail to the applicant because in that case too some decrees originated in the Court of Deoria, while the other decrees, in which rateable distribution was claimed, were transferred to that court. In the present case neither attachment was made nor the decree was transferred either before execution or after execution and consequently the present applicant was not entitled to rateable distribution merely on the basis of a Robkar which as stated earlier was issued wrongly against the actual order passed by the Court. The order passed by the learned Civil Judge, therefore, is correct and the revision fails and is hereby dismissed with costs.

7. Record of the case shall be sent back to the court below as early as possible.

Revision dismissed.