Indian Kanoon - Search engine for Indian Law

"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:...."

Sub-section (1) is followed by a proviso which is not material in considering the argument of the appellants. The conditions required to be satisfied for obtaining an order for rateable distribution are five in number :

"(1) The decree-holder claiming to share in the rateable distribution should have applied for execution of his decree.

(2). Such application should have been made prior to the receipt of the assets by the Court.

(3). The assets of which rateable distribution is claimed must be assets held by the Court.

(4) The attaching creditor as well as the decree-holder claiming to participate in the assets should be holders of decrees for payment of money.

(5). Such decrees should have been passed against the same judgment-debtor."

6. It is undisputed that conditions 1 to 4 are satisfied in this case and the only question which remains is whether the two decrees were passed against the 'same judgment-debtor'. Now, the provision relating to rateable distribution was enactedwith a view to avoid simultaneous prosecution of execution applications against the same property and to provide a procedure for equitable and orderly distribution of the assets received in execution of decrees against the same person. The Legislature provided that the decrees should have been obtained against the same Judgment-debtor before a right to claim rateable distribution can be exercised. The expression 'judgment-debtor' is defined in the Civil Procedure Code as meaning a person against whom a decree has been passed or against whom an order capable of execution has been made.

There is nothing in the Judgment either in the case of -- 'Mulchand Kesaji (F)' or in the case of-- 'Dundappa (H)' which enables the decree-holders in Darkhast No. 70 of 1945 to obtain an order for rateable distribution. In -- 'Jamiyatram's case (C)' the test laid down by Beaumont C. J. was that before rateable distribution can be ordered there must be between the judgment-debtors identity of individuality and identity of character. Since the full bench decisions in -- 'Mulchand Kesaji v. Shiddappa (F)' & -- 'Dundappa v. Anna-ji (H)', the identity of estate alone is required. Even applying the test of identity of legal character or legal capacity alone, the respondents are not entitled to rateable distribution. Therefore, even though the test applicable is modified, the ultimate decision in -- 'Jamiyatram's case (C)' stands-good. It may be noted that before the full bench -- 'Jamiyatram's case (C)' does not appear to have been cited and there is nothing to show that it was overruled either expressly or by implication.