Patna High Court
Bhola Sahu vs Chameli Devi And Anr. on 25 July, 1960
Equivalent citations: AIR1960PAT574, AIR 1960 PATNA 574
Author: V. Ramaswami
Bench: V. Ramaswami
JUDGMENT
In this case the petitioner Bhola Sahu was executing a decree obtained against opposite party No. 2 Sital Sahu in execution case, No. 181 of 1956 in the Court of the 2nd Munsif of Darbhanga. It appears that opposite party No. 1 Srimati Chamoli Devi was also executing another decree against the same judgment-debtor in execution case No. 158 of 1956 in the Court of the 1st Munsif, Darbhanga. In the latter execution case the property was sold on the 19th of July, 1957, and the assets came into the hauds of that executing Court. The sale was confirmed on the 19th of September, 1957. On the 17th of August, 1957, the petitioner made an application in the Court of the 1st Munsif, Darbhanga, for rateable distribution of the assets under Section 73 of the Civil Procedure Code. Section 73(1) of the Civil Procedure Code reads as follows :
"73. (1) 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;" Section 63, Civil Procedure Code, is to the following, effect :
"63. (1) Where property not in the custody of any Court is under attachment in execution of decrees of more Courts than one, the Court which shall receive or realize such property and shall determine any claim thereto and any objection, to the attachment thereof, shall be the Court of highest grade, or, where there is no difference in grade between such Courts, the Court under whose decree the property was first attached.
(2) Nothing in this section shall be deemed to invalidate any proceeding taken by a Court executing one of such decrees."
It is not disputed that it was the court of the 1st Munsif under whose decree the property was attached, and, therefore, it was the proper Court to which the claim should be made under the provisions of Section 63(1) of the Civil Procedure Code. But the Court of the 1st Munsif, Darbhanga, in this case has dismissed the claim of the petitioner for rateable distribution on the ground that he has not got the execution case, namely, execution case No. 181 of 1956, transferred from the 2nd Munsifs Court, Dharbhanga, to the Court of the 1st Munsif, Darbhanga.
(2) It was argued on behalf of the petitioner that the order of the 1st Munsif, Darbhanga, in this case dated the 3rd of January, 1958, is erroneous in law and must be set aside in exercise of our revisional powers. It was submitted by learned Counsel that if the conditions laid down under Section 73(1) of the Civil Procedure Code for making an application for rateable distribution are satisfied, then the Court is bound to make an order for rateable distribution in accordance with the provisions of that section even though the execution case had not been transferred from the Court of the 2nd Munsif, Darbhanga, to the Court of the 1st Munsif, Darbhanga.
In our opinion, this argument is well founded and must prevail. This view is supported by a decision of the Madras High Court in Megraj Iswar das v. Corporation of Madras, AIR 1936 Mad 797, f where it was pointed out by Venkatasubba Rao and Cornish, JJ. that although the decree-holder claiming rateable distribution should ordinarily, as prescribed by Section 73, have applied for execution to the Court by which the assets were held, Section 63 of the Civil Procedure Code recognised an exception and laid down when and to what extent this rule may be departed from. Where the property is under attachment in execution of decrees of more Courts than one, the right to rateable distribution arises, if the other conditions specified in Section 73 are satisfied.
The same principle was reiterated by the Allahabad High Court in Firm Chand Mal Rup Chand v. Gurdial Prasad, AIR 1939 All 159 where all the authorities on the point have been reviewed. This principle is also supported by a decision of the Nagpur High Court in Zumberlal Chhotelal v. Sitaram, AIR 1937 Nag 80 and a decision of the Hyderabad High Court in Commercial and Industrial Bank Ltd, v. Mir Sarfaraz Ali Khan, (S) AIR 1956 Hyd 65.
3. For these reasons we hold that the order of the learned Munsif, 1st Court, Darbhanga, dated the 3rd of January, 1958, dismissing the claim of the petitioner for rateable distribution is vitiated by error of law and must be set aside in exercise of our revisional jurisdiction. We accordingly allow this application and order, that the case should go back to the Munsif, 1st Court, Darbhanga, for being dealt with and determined in accordance with law.
4. We accordingly allow this application. There will be no order as to costs as the opposite party has not appeared.