The Mukkattukara Catholic Co. Ltd vs M/S. Suvarna Kuries & Loans (P) Ltd on 8 October, 2009
6. A reading of proviso ) to sub-section (1) of section 73 of the
Code of Civil Procedure would show that section 73(1) proviso )
fourthly is applicable only with respect to sale for the discharge of
incumbrance thereon. This is a case of simple sale. Therefore, there
would be no requirement of an application for rateable distribution
before the sale in the Execution Petition in which the sale was ordered.
WPC 35340/08 3
The lower court passed Ext.P3 order relying on decisions in Boban V.
Sajith Kumar (2004(1) KLT S.N. 4 (Case No.4), Joseph Antony V.
Varghese (1990(2) KLT SN 5 (Case No.7) and Subramonia Iyer V.
Sankaran Unni (1953 KLT 149). But the principles laid down in the
above decisions do not apply to the facts in the present case. Even in
those decisions it has been held that the petition for rateable
distribution need not be filed prior to the sale of the property in
dispute, but execution petition should have been filed before the sale.