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Showing contexts for: rateable distribution in Mst. Saraswatibai And Ors. vs Govindrao Keshavrao Mahajan And Ors. on 7 December, 1960Matching Fragments
1. This revision has come up before us in pursuance of the following order of Bhutt, C. J. :
"As the decision o£ a Division Bench of this Court in Balaji v. Gopal, 25 Nag LR 94 : (AIR 1929 Nag 148) is likely to come up for consideration, this revision shall be heard by a Full Bench."
2. The facts of the case giving rise to the question, which necessitated a reference to a Full Bench, may be briefly stated. In Execution Case No. 435 of 1955 pending in the Court of the First Civil Judge, Burhanpur, a house of the judgment-debtor was attached and put to sale. The auction-purchaser paid the price on 20th August 1957. Before that date, three other execution applications against the same judgment-debtor were made in that Court. In two of these cases, (No. 14 of 1955 and No. 438 of 1955), there is a prayer only for rateable distribution of the assets held in Execution Case No. 435 of 1955.
In the third case (No. 2070 of 1955), the relief claimed is attachment of immoveable property of the judgment-debtor and rateable distribution of the assets held in Execution Case No. 435 of 1955. Pursuant to the provisions of Section 63 of the Code of Civil Procedure, the sale proceeds and the four execution cases were transferred to the Court of the Additional District Judge, Khandwa, where another execution application against the same judgment-debtor was also pending. Reiving upon 25 Nag LR 94: (AIR 1929 Nag 148), the "Additional District Judge held that the applications in Execution Cases Nos. 14, 436 and 2070 of 1955 were not valid applications for execution and could not furnish any basis for rateable distribution of assets under Section 73 of the Code.
3. On a question, which did not arise out of the facts of 25 Nag LR 94: (AIR 1929 Nag 148) (cit. sup.) but which was specifically referred to a Division Bench, it was held that a creditor claiming rateable distribution on the strength of a money decree must himself ask for attachment and safe of the property or for execution of his decree by one of the modes, not including rateable distribution, specified in Order 21. Rule 11(2)(j) of the C. P. C.
4. The question for consideration here is whether an otherwise good application for execution can be regarded, for the purposes of Section 73 of the Code of Civil Procedure, to be one made in accordance with law even if the only mode in which the assistance of the Court stated to be required is rateable distribution of the assets to be received in another execution case pending in the same Court. As indicated earlier, 25 Nag LR 94: (AIR 1929 Nag 148) (cit. sup.) is a direct authority for the contrary view, though the decision of that case is supportable on the ground that there was, unlike the case be-fore us, no execution application and only an application for rateable distribution of assets had been filed. Some support for that view was sought to be derived from Gopal Parshuram v. Damodar Janardan, AIR 1943 Bom 353.
The words of Clause (j)(v) "otherwise as the nature of the relief granted may require" are wide. As the Calcutta High Court pointed out in the case referred to above, they cannot be construed ejusdem generis with other clauses because there is no common genus. Also, the relief granted in each of the three cases here was a money decree and the mode of the assistance of the Court sought was recovery of the decretal amount by rateable distribution. Order 21, Rule 30 of the Code is not exhaustive of the modes in which a money decree may be executed. The Code itself provides for another mode of execution of a money decree, namely, rateable distribution. That being so, we are of the view that recovery of the money decreed by rateable distribution of assets, being a permissible mode of execution, is within the ambit of Clause (j)(v) of Order 21, Rule 11(2) of the Code and an execution application which specified it as the mode in which the assistance of the Court is required is one in accordance with law for purposes of Section 73 of the Code. We are supported in this view by the cases we have mentioned at the end of the last paragraph.