Balmer Lawrie & Co. v. Jadunath Bannerjee & Ors. Opposite Parties.

This Rule is directed against an order by which the Subordinate Judge has refused an application for rateable distribution under sec. 73 of the Code of Civil Procedure of 1908. The Opposite Party obtained a decree for money against his judgment-debtor by name. Dasarathi Mukherjee while the Petitioner obtained a decree for money against D. Mukherjee and Company, a firm of which Dasarathi Mukherjee was a partner. At the instance of the decree-holder Opposite Party, the Municipal Corporation of Calcutta, which held two Government securities and a sum of money payable to Dasarathi Mukherjee, placed the properties at the disposal of the lower Court for satisfaction of the decree held by him. During the pendency of a proceeding for rateable distribution as between the Opposite Party and other execution-creditors of Dasarathi Mukherjee at whose instance the properties in the custody of the Corporation had been attached through the Calcutta Small Cause Court, the present Petitioner, on the 15th January 1914, made an application for rateable distribution. This application has been refused by the Subordinate Judge on the ground that it was made after the receipt of the assets by the Court. The question for consideration is, whether this order has been lightly made.

A preliminary objection has been taken to the Rule on the ground that the order of the Subordinate Judge was in essence made under sec. 47 of the Code and was appealable as a decree. In support of this view, reference has been made to the case of Sorabji Coovarji v. Kala Raghunath(1). That case, however, is clearly distinguishable. There the decree-holders had attached the property of their common judgment-debtor. Other execution creditors of the judgment-debtor applied for rateable distribution of the assets which might be realised by sale of the property. The judgment-debtor brought into Court a sum sufficient to satisfy the two decree-holders at whose instance the property had been attached. Thereupon the other decree-holder applied for rateable distribution of the sum so deposited, and the Court, without notice to the judgment-debtor, allowed their application. The result was that there was not a sufficient sum left to the credit of the decree-holders, at whose instance the attachment had been effected, to satisfy their dues; and the Court accordingly directed that the property attached he sold in order that their decrees might be satisfied in full. The judgment-debtor appealed against this order, on the ground that no rateable distribution was permissible under the law in respect of the money brought by him into Court and that as the sum deposited was sufficient to satisfy the decrees held by the two execution creditors who had taken out processes of attachment, their decrees must be deemed in law to have been satisfied, so that there was no execution proceeding left in which an order for rateable distribution might be made. An objection that the appeal was incompetent as the question raised was not within the scope of sec. 47, was overruled on the ground that the question did arise between parties to the decree. It is not necessary for our present purpose to decide whether, in circumstances like these, the question which arose not merely between the rival decree-holders, but also between the judgment-debtor on the one hand and the decree-holders on the other, could be deemed to fall within the scope of sec. 47. But it is plain that in the case before us the question which calls for decision is not within the scope of that section. This is not a question which arises between the parties to the suit in which the decree under execution was passed; it is on the other hand a question between two rival decree-holders, which does not affect or interest the judgment-debtor. An order made under sec. 73 is an order in execution proceedings, but is not a decree unless all the conditions enumerated in sec. 47 are present, Jagadish v. Kripanath(2). We must consequently hold that the order of the Subordinate Judge is not appealable and overrule the preliminary objection.

As regards the merits, it is plain that the Petitioner is not entitled to succeed. Sec. 73 provides that 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 realization, shall be rateably distributed among all such persons. It is essential for the application of the section that the decrees should have been passed against the same judgment-debtor. This has been made clear beyond possibility of dispute by the introduction of the word “passed” which did not find a place in sec. 295 of the Code of 1882. But as already stated, the decree held by the Opposite Party, in execution of which the properties have been brought into Court, was passed against Dasarathi Muklierjee while the decree held by the Petitioner was obtained against the firm of which Dasarathi Mukherjee was a partner, and is not shown to be capable of execution against him individually. Consequently the two decrees cannot be deemed to have been passed against the same judgment-debtor, and it is thus needless to consider whether Gonesk Das v. Shiva Lakshman(3), has been affected by sec. 73 of the Code of 1908 which reproduces sec. 295 of the Code of 1882 in an altered form. In this view, it is also unnecessary to discuss the question, whether the application for rateable distribution by the Petitioners was made before the assets had been received by the Court below.

The result is that the Rule is discharged with costs to the decree-holder (and not to judgment-debtor) Opposite Party. We assess the hearing fee at two gold mohurs.

Rule discharged.