Andhra HC (Pre-Telangana)
Achuri Narayana (Died), Rep. By His L.R. ... vs Mamidi Eshwaraiah, S/O Butchaiah, 64 ... on 9 August, 2016
Bench: C.V.Nagarjuna Reddy, G.Shyam Prasad
THE HON'BLE SRI JUSTICE C.V.NAGARJUNA REDDY AND THE HON'BLE SRI JUSTICE G.SHYAM PRASAD CIVIL REVISION PETITION Nos. 1052 OF 2009 and batch 09-08-2016 Achuri Narayana (Died), Rep. by his L.R. Achuri Lingamma, W/o late Narayana, 57 years, Hindu, Household, R/o H.No. 5-8-6/E,Deverkonda Road, Nalgonda Town & DistrictPetitioner Mamidi Eshwaraiah, S/o Butchaiah, 64 years, Hindu, Agriculture, R/o Nalgonda Town & District, and anotherRespondents Counsel for the petitioner:Sri Sai Gangadhar Chamarty Counsel for the respondents:Sri Chalakani Venkat Yadav <GIST : >HEAD NOTE: ?Cases referred: 1. 2002 (4) ALT 718 2. 2006 (6) ALD 244 3. 2002 (6) ALD 169 4. AIR 1961 A.P. 422 5. 1977 ALT 472 6. AIR 1984 AP 277 7. AIR 1994 AP 53 (1) 8. AIR 1956 Hyderabad 65 (F.B.) 9. AIR 1937 Pat. 92 (T) 10. 4 Mad. 383 (U) 11. AIR 1973 Madras 313 12. AIR 1929 Mad 703 13. (2004) 11 SCC 641 14. (2007) 2 SCC 230 15. (2004) 9 SCC 686 16. (2004) 11 SCC 625 17. (2004) 6 SCC 210 18. (1852) 21 LJ Ch 405 19. (2003) 5 SCC 590 20. AIR 1957 907 THE HON'BLE SRI JUSTICE C.V.NAGARJUNA REDDY AND THE HON'BLE SRI JUSTICE G.SHYAM PRASAD C.R.P.Nos. 1052, 1054, 1055 & 1056 OF 2009 DATED 09TH AUGUST, 2016 C.R.P.No. 1052 OF 2009 THE COURT MADE THE FOLLOWING COMMON ORDER:
(per Hon'ble Sri Justice C.V.Nagarjuna Reddy) These four civil revision petitions, arising out of separate but identical orders, came to be placed before us on a reference made by a learned single judge by common order dt.15.6.2009 in this batch of civil revision petitions.
2. The brief facts, leading to the filing of these revision petitions, are stated hereunder:
The petitioners filed O.S.Nos. 73 of 2000 and 3 of 2002 against respondent No. 2, in all these revisions, for recovery of certain amounts. Both these suits were decreed, on 23-04-2001 and 11-06-2002 respectively. The petitioners have filed E.P.Nos. 39 of 2001 and 21 of 2005 for execution of the decrees by sale of the property of respondent No. 2-judgment debtor. Respondent No. 1 in these revisions filed O.S.Nos. 223 and 228 of 1998 against respondent No. 2. These suits were also decreed. The decree-holder in O.S.No. 223 of 1998 filed E.A.No. 195 of 2005 in E.P.No. 39 of 2001 and E.A.No. 239 of 2005 in E.P.No. 21 of 2005 and the decree-holder in O.S.No. 228 of 1998 filed E.A.No. 197 of 2005 in E.P.No. 39 of 2001 and E.A.No. 238 of 2005 in E.P.No. 21 of 2005. They filed these applications under Section 73 of the Code of Civil Procedure (for short, 'C.P.C.') for rateable distribution of the amounts available with the execution Court in all the above mentioned suits. The petitioners have opposed these applications on the ground that respondent No. 1 in both the cases have not complied with the fundamental requirement of the provisions of Section 73 of C.P.C., namely; filing of execution petitions for execution of decrees obtained in their favour and that, therefore, they are not entitled for rateable distribution. The execution Court, however, rejected this objection and allowed the four E.As. The sole basis for allowing the E.As. by the execution Court was the ratio in the judgment of a learned single judge of this Court in Jagadish Vaishnav v. Farpos Leading Cateror and others . Assailing these orders, the petitioners filed all these revision petitions.
3. When the cases were heard by the learned single judge, he has noticed conflicting judgments between Jagadish Vaishnav (1 supra) and E.Subba Reddy v. G.Dhananjay and another and Kanakam Srinivasa Rao v. Ganga Venkateswara Rao and another . Having noticed the divergence of opinions expressed by different learned single Judges of this Court, the learned judge framed the following point for reference:
"Whether filing of an execution application by a decree-holder is a condition precedent for filing petition under Section 73 C.P.C. for rateable distribution of the amounts deposited in another execution petition."
4. Before referring to the case law on the aspect, it is instructive to consider Section 73 of C.P.C., which reads as under:
"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."
A plain reading of Section 73 of C.P.C. would reveal that in order to claim rateable distribution of assets, the following requirements need to be fulfilled:
(a) The judgment-debtor must be common;
(b) A Court must hold assets;
(c) Before receipt of such assets by the Court, the applicant, for
rateable distribution, must have made an application to the Court for execution of the decree for the payment of money passed against the same judgment-debtor; and
(d) The applicant has not obtained satisfaction of the decree.
5. In Katikala Subbayyamma v. Penmetsa Bangarraju and another , against a common judgment-debtor, two separate decrees were obtained by different creditors. When one of the decree-holders filed an application under Section 73 of C.P.C. for rateable distribution in the execution petition filed by another decree-holder without filing an execution petition, such application was opposed by the decree-holder who filed the execution petition. The said objection was overruled by the execution Court. However, Chandrasekhara Sastry, J., speaking for this Court, overturned the order of the execution Court by holding as under:
"On a plain reading of this Section, it appears that one of the conditions which has to be satisfied before a decree-holder can claim rateable distribution under this Section is that he should have applied for execution of his decree to 'the Court' before the receipt of the said assets by a Court, that is, the application for execution must be pending in the Court by which the assets are received."
(emphasis added) In Salamkayala Pulleswara Rao v. Munagala Basaviah Kutumba Rao firm and others , a learned single judge laid down various conditions to be satisfied by a decree-holder to participate in the rateable distribution of assets of the judgment-debtor and the foremost condition referred to was 'the decree- holder claiming to share in the rateable distribution should have applied for execution of his decree to the appropriate Court'.
In Kancharla Suryavathi v. Thota Suryakantham and others , another learned single judge held:
"A more rational view to be taken is to restrict such claims only to decree- holders who are executing their decrees for money in the same Court against the same judgment-debtor."
In Lanka Suryaprakash Rao and others v. Gadigatla Venkaramanna Chowdary and others , it was held as under:
"It is manifest from Section 73 C.P.C. that rateables can be claimed by only such of those creditors who made applications for the execution of decrees for the payment of money before the receipt of assets by the Court."
6. In E.Subba Reddy (2 supra), against a common judgment-debtor, two decrees were obtained by different persons. Both the decree-holders have filed separate execution petitions. However, one of the decree-holders has filed an application under Section 73 of C.P.C. in the execution petition filed by the other decree-holder. A learned single judge of this Court held that such an application by one decree-holder would have been maintainable in the execution petition filed by him and not in the execution petition filed by the other decree-holder. We find this judgment did not deal with the interpretation of Section 73 of C.P.C.
on the point which is referred to us namely; whether an application under Section 73 of C.P.C. could be filed by any decree-holder without his filing an execution petition.
7. In Kanakam Srinivasa Rao (3 supra), a learned single judge has referred to various judgments including that of a Full Bench of Hyderabad High Court in C & I Bank v. M.S.Ali Khan , which considered Section 371 of the (Hyderabad) Civil Procedure Code (3 of 1323 F), which is in pari materia with Section 73 of C.P.C., wherein it was inter alia held as under:
"All that is required under Section 371, Hyderabad C.P.C., for a rateable distribution to a decree holder is that he should have made an application to the Court for execution of the decree against the same judgment debtor and that he had not obtained satisfaction therefor."
It was further held:
"Once an application for execution has been made, it does not matter if it is dismissed and was not pending when the amount was received in Court, provided it has not been satisfied or barred by limitation. In other words, the decree in execution must be executable at the time when the amount is received in Court for rateable distribution."
The learned single judge has also relied upon the judgments in Bimala Nanda v. Dhirindra Nath and Tiruchittambala Chetty v. Seshayyangar and held as under:
"In view of the above Full Bench decision of the Hyderabad High Court, which became part of our High Court, the view expressed by the learned single judge of our High Court in the case of Kancharla Suryavathi (6 supra) as well as the Madras High Court in the case of V.T.V.Chettiar v.
P.S.P.Chettiar cannot be considered to have construed the provision properly. Apart from that, it is difficult for any decree-holder to get his decree transferred to another Court before receipt of the assets by that Court, as the other decree-holders may not be aware of the existence of such a decree in another Court, ultimately, which called for the assets of the judgment-debtor and received by it. What is contemplated under the provisions of Section 73 of the Code of Civil Procedure is the existence of more than one decree against the same judgment debtor and the decree-holders have made their applications for execution of their decrees and have not been fully satisfied. Once that is the position, as soon as the assets of the judgment-debtor are received by another Court, they can make an application under Section 73 for rateable distribution without getting their decrees transferred to the Court, which received the assets. As held in the above referred judgments, even the attachment of the assets of the judgment-debtor, by all the decree-holders is also not necessary and the requirement is only to make an application after receipt of the assets by the Court, (an application) under Section 73 for rateable distribution.........." (emphasis is ours)
8. While the preponderance of judicial opinion as discussed above is that in order to be entitled to a rateable distribution under Section 73 CPC, the decree holder must necessarily have filed execution petition and the decree has not been satisfied, a learned single judge of this Court in Jagadish Vaishnav (1 supra) took a different view by holding that non-filing of an execution petition does not deprive a decree-holder of the benefit of rateable distribution under Section 73 of C.P.C. In coming to this conclusion, the learned single judge has relied upon the Full Bench judgment of the Madras High Court in K.Abdul Salam Saheb v. B. Virabhadra Raju and another . Before discussing the reasoning of the learned Judge, we feel it necessary to refer to the facts in and findings of the Madras High Court in K. Abdul Salam Saheb (12 supra). In that case, the plaintiff obtained a decree on 16.6.1922. On 30.6.1922, he has filed Ex.C application for an order of attachment in which an order attaching the money credited to the defendants suit was passed. Ex.C was found in lacking certain particulars required for being treated as proper formal execution application under Order XXI Rule 11 of CPC. A question arose whether Ex.C could be treated as a valid execution application for the purpose of ratable distribution under Section 73 of CPC. There was a split verdict between Devadoss and Jackson, JJ, with the former holding in favour of the plaintiff and the latter taking a converse view. The matter was referred to a Full Bench. While agreeing with the view of Devadoss, J, Wallace, J, speaking for the Full Bench, made the following observations with regard to Section 73 of CPC.
The purpose of that section obviously is that there should be an equitable distribution of assets between those creditors who have been diligent enough to obtain decrees and put in execution applications before the time such assets have been received, and we must in this case look rather to the substance than to the form of the application in order to administer the equity which the law provides.
(emphasis is ours) The learned Judge in Jagadish Vaishnav (1 supra) appeared to have been guided by the observations of the Full Bench in K. Abdul Salam Saheb (12 supra) that we must look rather to the substance than to the form of the application in order to administer the equity. What appears to have been overlooked by the learned Judge was that the Full Bench in so many words has laid down that the purpose of Section 73 of CPC is to make out an equitable distribution of assets between those creditors who have been diligent enough to obtain decrees and put in execution applications before the time such assets have been received. Having so held, the Full Bench, however, was not prepared to nonsuit the plaintiff for ratable distribution on the ground of execution application not strictly conforming to the requirements of Order XXI Rule 11 of CPC. It is clear from the facts in K. Abdul Salam Saheb (12 supra), unlike the facts in Jagadish Vaishnav (1 supra) and in the case on hand, the plaintiff has filed an execution application and post-judgment attachment was also ordered on such execution application. The observation that the form of the application rather than its substance needs to be considered, was made in the context of defects in the execution application and not for exempting the plaintiff from the requirement of filing execution petition as a pre-condition for maintaining an application for ratable distribution under Section 73 of CPC. Therefore, with due respect to the learned Judge who decided Jagadish Vaishnav (1 supra), the observations of the Full Bench of the Madras High Court in K. Abdul Salam Saheb (12 supra) were misconstrued and the case was wrongly decided by holding that the decree-holders though have not filed execution petition have substantially complied with the requirement of Section 73 of CPC. In our opinion, the theory of substantial compliance of the provisions of Section 73 of C.P.C. militates against its plain language, for, sub-section (1) thereof unequivocally lays down the requirement of application for the execution of decrees having been made by the decree-holders before receipt of assets by a Court, and also that the decree-holders must not have obtained satisfaction of the decrees in such execution petitions.
9. It is well-settled principle of interpretation of statutes that where the words of a statute are absolutely clear and unambiguous, recourse cannot be had to the principles of interpretation other than the literal rule (Swedish Match AB v.
Securities and Exchange Board of India and Raghunath Rai Bareja v. Punjab National Bank ). The language employed in a statute is the determinative factor of the legislative intent (Prakash Nath Khanna v. CIT ). The Legislature is presumed to have made no mistake. The presumption is that it intended to say what it has said. Assuming there is a defect or an omission in the words used by the legislature, the court cannot correct or make up the deficiency, especially when a literal reading thereof produces an intelligible result (Delhi Financial Corporation v. Rajiv Anand ). Where the legislative intent is clear from the language, the court should give effect to it (Government of A.P. v. Road Rollers Owners Welfare Association ). Lord Cranworth in Gundry v. Pinniger , observed that to adhere as closely as possible to the literal meaning of the words used, is a cardinal rule from which if we depart we launch into a sea of difficulties which it is not easy to fathom. The rules of interpretation other than the literal rule would come into play only if there is any doubt with regard to the express language used or if the plain meaning would lead to an absurdity. Where the words are unequivocal, there is no scope for importing any rule of interpretation (Pandyan Chemicals Ltd. v. C.I.T ). The first and primary rule of construction is that the intention of the legislature must be found in the words used by the legislature itself. If the words used are capable of one construction, only then it would not be open to the courts to adopt any other hypothetical construction on the ground that such hypothetical construction is more consistent with the alleged object and policy of the Act. The words used in the material provisions of the statute must be interpreted in their plain grammatical meaning and it is only when such words are capable of two constructions that the question of giving effect to the policy or object of the Act can legitimately arise (Kanai Lal Sur v. Paramnidhi Sadhukhan ).
10. The obvious purpose behind stipulation of filing execution petitions, as a sine qua non for maintaining an application for rateable distribution under Section 73 of C.P.C., is to enable only such of those decree-holders who are vigilant and diligent in enforcing their decrees by filing execution petitions rather than allowing decree-holders who sleep over their right the benefit of reteable distribution in the execution petitions filed by others. Any other interpretation of Section 73 of C.P.C. would do violence to its plain language and render the words "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" wholly redundant and surplusage.
11. Having regard to the obvious purpose with which the above requirement is incorporated in Section 73 of C.P.C., as explained above, the condition that the decree holder must have filed execution petition and have not obtained satisfaction thereof cannot be construed as an empty formality. Thus, in our view, a decree-holder, who seeks rateable distribution, has to necessarily comply with the requirement of filing of an execution petition not merely to necessarily comply with the said provision in its form but also in its content.
12. In the light of the above discussion, we are of the view that the judgment in Jagadish Vaishnav (1 supra) has not laid down correct law. In our opinion, in order to be entitled for rateable distribution, a decree-holder must not only show that he has filed an execution petition before the assets held by a Court were received but also he must satisfy the Court that he has not obtained satisfaction of the decree. As respondent No. 1 decree holders in all these cases did not file the execution petitions, they are not entitled to rateable distribution under Section 73 of C.P.C. and the lower Court has erroneously allowed their applications. The reference is answered accordingly.
13. For the afore-mentioned reasons, the orders under revision are set aside and the civil revision petitions are allowed.
As a sequel to disposal of the civil revision petitions, C.R.P.M.P.Nos. 1487, 1490, 1491 and 1492 of 2009 shall stand disposed of as infructuous.
________________________ C.V.NAGARJUNA REDDY, J.
___________________ G.SHYAM PRASAD, J.
Date: 09-08-2016.