Madras High Court
S.R.M.M.C.T. Muthiah Chetty And Ors. vs A.L.V.R. Alagappa Chetty And Ors. on 5 February, 1918
Equivalent citations: 47IND. CAS.296
JUDGMENT
1. The payment into Court of assets realised and the application for rateable distribution were made on the same day, and the officer distributing the assets should have ascertained which act was prior in point of time. He distributed the assets on the footing that the application was prior.
2. The plaintiffs who now challenge his action must show that it was wrongful, since there can be no presumption as to the order of events. The second point argued was that owing to an irregularity in the proceedings the application for execution made by the 1st defendant was not legally subsisting at the date of distribution.
3. A valid application within Section 73 had been made and was on the file of the Court at the date of distribution, and we think that the requirements of the Section had been fulfilled.
4. The third point is whether the decrees were against the same judgment debtor. The appellants obtained a decree for money against 3rd and 4th defendants personally and respondents obtained a similar decree against 3rd defendant. It has been held by this Court that the individuals must be the same Srinivasaiyengar v. Kanthimathi Ammal 5 Ind. Cas. 917 : 33 M. 465 : 7 M.L.T. 157 and the precise point was decided by the Calcutta High Court Debohi Nundun Sen v. Hart 12 C. 294 : 6 Ind. Dec. (N.S.) 200.
5. It has been pointed out that if the fund in Court is the property of the same person who is judgment-debtor under both decrees, he may be regarded as the same debtor in respect of that fund Simbaji Tulsiram v. Vadia Venkati 16 B. 683 : 8 Ind. Dec. (N.S.) 933 and Grant v. Subramaniam 22 M. 241 : 9 M.L.J. 179 : 8 Ind. Dec. (N.S.) 172; but if the fund is the joint property of two persons their respective rights thereto cannot be ascertained without an enquiry which is beyond the scope of Section 73 Deboki Nundun Sen v. Hart 12 C. 294 : 6 Ind. Dec. (N.S.) 200.
6. It is, however, admitted here that the joint debtors were entitled to the fund in equal shares, and in the argument on this part of the ease the plaintiffs did not claim more than half of the fund paid to the 1st defendant; and therefore the inquiry mentioned in Deboki Nundun Sen v. Hart 12 C. 294 : 6 Ind. Dec. (N.S.) 200 is unnecessary. We are, therefore, of opinion that the 1st defendant must account to the plaintiffs for their share of half of the fund in which the 1st defendant was not entitled to participate. The appeal is allowed to this extent and there will be a decree for plaintiffs for Rs. 1,118 with interest at 6 per cent, from 23rd July 1913 till payment with proportionate coats of both parties throughout.