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1 - 7 of 7 (0.25 seconds)Jugalkishore Saraf vs Raw Cotton Co. Ltd on 7 March, 1955
8. Mr. Vin also incidentally referred to Jugalkishore Saraf v. Raw Cotton Co. Ltd., AIR 1955 SC 376. The contention that was raised in that case was that the application for execution was defective inasmuch as it did not specify any of the several modes In which the assistance of the Court was required. Disposing of this contention, it was held that even if the application was defective, the Court could have returned the application for amendment but on this account alone, it cannot be said that there was no valid and proper application for execution.
Gopal Parsharam Namjoshi vs Damodar Janardan Bhagwat on 6 October, 1942
As per the above test where the decree is for enforcement of a charge or realisation of mortgage dues by sale of security, if the assistance of the Court is sought by way of rateable distribution, certainly the Court would not be able to grant the assistance and the application for execution would not be in accordance with law. It must be remembered that Section 73 is confined to money decree only. The Court in that case having reached the conclusion that the decree under execution was not a money decree, the darkhast in which the assistance of the Court was sought for rateable distribution was held not in accordance with law. This decision therefore is not an authority for the proposition as urged by Mr. Patel that an application for execution of a money decree otherwise in conformity with Rule 11(2) but seeking the assistance of the Court for rateable distribution could not be said to be in accordance with law for the purpose of Section 73. The ratio of the decision is that if the decree under execution is a money decree rateable distribution would be one of the modes in which assistance of the Court could be sought. Therefore, the trend of authorities also indicate that an application for execution of a money decree otherwise in conformity with Rule 11(2) but in which assistance of the Court is sought for rateable distribution is an application in accordance with law as envisaged by Section 73 of the Code of Civil Procedure.
Kasi Prosad Khaitan vs Moti Lall And Ors. on 29 April, 1958
4. Mr. Vin first referred to Kasi Prasad Khaitan v. Moti Lall, AIR 1959 Cal 566 in which exactly an identical question was raised before the Division Bench of the Calcutta High Court. The question for consideration that was raised in that case was whether an application for execution in which the mode in which the assistance of the Court is required does not mention attachment or sale of property but says that the decree-holder prays for realisation of the decretal duea by rateable distribution of the money that will be realised in another execution application of that Court, can be considered to be an application for execution validly made within the meaning of Section 73 of the Code of Civil Procedure. After considering the provisions contained in Order XXI, Rule 11(2)(j), it was held that a mere application for rateable distribution which does not contain the particulars mentioned In Sub-rule (2) of Rule 11, is not an application for execution but where there is an application which is in all other respects a proper application for execution under Order XXI, Rule 11(2), it does not cease to be a valid application merely because the mode in which the assistance of the Court required is mentioned as rateable distribution of money that will be realised in another execution case.
Musammat Deorajo Kuer vs Jadunandan Rai on 1 July, 1930
5. Mr. Vin next referred to the case of Deoraji Kuer v. Jadunandan Rai, AIR 1931 All 92. In that case, the application for execution was in a printed tabular form and all the particulars required for an application for execution were filled in, in columns 1 to 9 and in the last column which is column No. 10 has a heading "the mode in which the assistance of the Court is required". It was stated that the only property which the judgment-debtor had, has already been attached in execution of the other decrees and was to be put up for sale and it was therefore prayed that the decree-holder should be paid his decretal amount by rateable distribution of the amount realised at the auction sale. A contention was raised whether this application was one for execution in accordance with law and also whether a separate and independent application for rateable distribution under Section 73 is necessary. Disposing of this contention, it has been held that the application is a proper application for execution because one can read an implied prayer for the sale of the property and rateable distribution. It was further held that section 73 does not require a separate application for rateable distribution and accordingly there can be no objection to include a prayer for the rateable distribution, of the assets in the application which is really for execution of the decree itself.
Mst. Saraswatibai And Ors. vs Govindrao Keshavrao Mahajan And Ors. on 7 December, 1960
7. The next case referred to by Mr. Vin was in the matter of Mst. Saraswatibai v. Govindrao Keshavrao Mahajan, AIR 1961 Madh Pra 145. The question that was canvassed before a Full Bench of the Madhya Pradesh High Court was whether an otherwise good application for execution can be regarded, for the purposes of Section 73 of the Civil Procedure Code, 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. After reviewing the case law on the subject it has been held as under:--
A.L.A.R. Arunachellam Chettiar vs P.S.K. Haji Sheek Meera Rowthar on 25 February, 1910
10. Mr. Patel also referred to A. I. A. R. Arunachellam Chettiar v. P. S. K. Haji Sheek Meera Rowthar, ILR 34 Mad 25 which has been considered in the case of AIR 1929 Nag 148 (supra).
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