Madras High Court
Thirumayee Ammal vs Palaniappa Gounder on 19 January, 1972
Equivalent citations: (1972)2MLJ117
ORDER S. Ganesan, J.
1. The decree-holder in O.S. No. 370 of 1969 on the file of the District Munsif's Court, Palani, has filed this Civil Revision Petition, on being aggrieved that the learned District Munsif has allowed the application filed by the respondent who is a decree-holder in O.S. No. 330 of 1970 on the file of the same District Munsif's Court, for rateable distribution under Section 73 of the Code of Civil Procedure.
2. The petitioner herein obtained a money decree in O.S. No. 370 of 1969 and brought the property of the judgment-debtor for sale in execution and purchased the same on 15th June, 1970, after having obtained leave from the executing Court to bid and set-off. The respondent obtained a money decree in his suit O.S. No. 330 of 1970 on 29th June, 1970 after the sale had been concluded in favour of the petitioner herein but before confirmation.
3. The only question for consideration in this petition is whether the respondent-decree-holder in O.S. No. 330 of 1970 who had obtained a decree on 29th June, 1970, admittedly after the sale had been concluded in favour of the petitioner who had obtained leave to bid and set-off, is entitled to claim rateable distribution.
4. Section 73 of the Code of Civil Procedure clearly provides that the applicant-decree-holder for rateable distribution must file the application before the receipt of the assets by the executing Court. The point for consideration is where the decree-holder had purchased the property in auction after having obtained permission to bid and set-off, the Court should be deemed to have received the assets on the date of the sale.
5. In Punnamchand v. Satyanandam 65 M.L.J. 569 : A.I.R. 1933 Mad. 804, a Division Bench of this Court has answered the question in the affirmative and the learned Judges have observed that, when a decree-holder has been given permission to bid and set-off, and when the amount of the successful bid is less than the decree amount the whole of the set-off must be deemed as made on the date of sale and that the whole of the amount must be deemed to have been received or realised eo instanti the sale is made and Section 73 will give no benefit to the other decree-holders who apply for rateable distribution after the conclusion of the sale however soon after its conclusion their applications may be made. I am bound by this decision.
6. In this case, the decree amount is Rs. 5,100 and the sale price is Rs. 5,000 and it necessarily follows that application by the respondent decree-holder for rateable distribution is not maintainable.
7. The executing Court has in allowing the respondent's claim for rateable distribution purported to rely on a decision of a Full Bench in Nachiappa Chettiar v. Subbier (1923) 44 Mad. 506 : A.I.R. 1923 Mad. 505. The facts in that case are however, clearly distinguishable and it is seen from the judgment that the assets had not been realised by the Court on the date when the applications had been made. In the suit filed by 'S' an application for attachment before judgment of the goods was made and the sale proceeds were deposited into Court towards the credit of the suit on nth April, 1917. In the meantime, another decree-holder 'N' attached the money in Court deposit before judgment and obtained a decree on 19th April, 1917 and applied for payment on 7th June, 1917. Meanwhile another decree-holder 'R' obtained a decree on 29th June, 1917. It was only thereafter that 'S' obtained a decree on 2nd July, 1917 and applied for payment out on 3rd July, 1917. It is obvious that in that case the assets had not been realised by the Court. The applications for rateable distribution had been made before such a realisation.
8. In the result, the revision petition is allowed but under the circumstances without costs. The application filed by the respondent herein for rateable distribution is dismissed, but without costs.