Ayisa Bovi Ammal vs Sokara Booi

Madhavan Nair, J.—This Civil Miscellaneous Second Appeal is against an order of the District Judge of East Tanjore at Negapatam

affirming an order of the District Munsif dismissing a petition for rateable distribution u/s 73 of the C.P.C. The appellant is the 2nd defendant and

the respondent is the plaintiff-decree-holder in O.S. No. 32 of 1918 on the file of the Court of the Additional District Munsif of Tiruvalur. In that

suit a decree for partition was passed to the effect that the 1st defendant in the suit was to pay the plaintiff a certain sum of money and he was also

directed to pay to the present appellant another sum of money. The relevant portion of the decree is as follows: ""this Court doth order and decree

that the 1st defendant do pay to the plaintiff (for her share) the sum of Rs. 2,999-8-0 with interest thereon at the rate of 6 per cent. per annum

from this date to the date of realization of the said sum and do also pay to the plaintiff the sum of Rs. 352-3-2 for her costs of this suit with interest

thereon at the rate of 6 per cent. per annum from this date to the date of realization. And this Court doth further order and decree that on payment

by the 2nd defendant of the necessary Court-fees amounting to Rs. 175 due to Government, 1st defendant do pay to the 2nd defendant (for her

share) the sum of Rs. 2,999-8-0 with interest thereon at the rate of 6 per cent. per annum from this date to the date of realization of the said sum.

This decree was passed by the Additional District Munsif of Tiruvalur. After the passing of the decree the respondent here, viz., the plaintiff got it

transferred to the Nagapatam Court and in execution of the decree a certain amount has been realized. The present appellant filed an application

u/s 73 of the C.P.C., claiming a share by way of rateable distribution and his petition has been dismissed by both the lower Courts. The learned

District Judge held that the appellant ""is not entitled to execution in the Negapatam Court without the decree having been transferred at her instance

to the said Court.

Mr. Krishnaswami Iyer on behalf of the respondent has taken a preliminary objection that no second appeal lies in this case inasmuch as the

contest here is between two rival decree-holders in which the judgment-debtor has no interest and the order appealed against does not, therefore,

come u/s 47 of the C.P.C. In support of his contention he has relied upon three decisions, namely, Varada Ramaswami v. Vumma Venkataratnam

67 Ind. Cas. 546 : 42 M.L.J. 473 : 30 M.L.T. 178 : 15 L.W.421 : (1922) M.W.N. 184 : A.I.R.(1922) 99, Rajah of Karvetnagar v. Venkata

Reddi 29 Ind. Cas. 231 : 39 M. 570 : 29 M.L.J. 96 : (1915) M.W.N. 334 : 17 M.L.T. 427 and Venkatakrishna Pattar v. Venkatakrishna Pattar

37 Ind. Cas. 900 : 31 M.L.J. 820 : 20 M.L.T. 538 : 5 L.W. 354. I think these cases are clearly distinguishable. In the case reported as Varada

Ramaswami v. Vumma Venkataratnam 67 Ind. Cas. 546 : 42 M.L.J. 473 : 30 M.L.T. 178 : 15 L.W.421 : (1922) M.W.N. 184 : A.I.R.(1922) .

(M) 99, the respondent ""obtained a decree against a certain judgment-debtor Mothivala Usman in O.S. No. 776 of 1916 on the file of the Ellore

District Munsif. In execution he attached certain monies belonging to the judgment-debtor. Various other decree-holders who are appellants now

before us applied for and obtained rateable distribution u/s 73 of the C.P.C. The money was distributed. On appeal the order for rateable

distribution was set aside by the Court. The respondent then applied for the return of the money which had been paid to the other decree-holders.

One of the questions for decision in the case was whether the order for rateable distribution can be considered to be an order u/s 47 of the C.P.C.

The learned Judges held that the order did not fall within Section 47 of the C.P.C. since it was passed on contest between rival decree-holders and

no objection to the rateable distribution was raised by the judgment-debtor and it was not suggested that his interests were directly or indirectly

affected. The facts of the case show that the contest was not between parties to the suit in O.S. No. 776 of 1917 but between the decree-holder

in that suit and various other decree-holders. Clearly, therefore, the order did not fall within Section 47 as it did not settle any question arising

between the parties to the suit in which the decree was passed. In Rajah of Karvetnagar v. Venkata Reddi 29 Ind. Cas. 231 : 39 M. 570 : 29

M.L.J. 96 : (1915) M.W.N. 334 : 17 M.L.T. 427 referred to in Varada Ramaswami v. Vumma Venkataratnam 67 Ind. Cas. 546 : 42 M.L.J. 473

: 30 M.L.T. 178 : 15 L.W.421 : (1922) M.W.N. 184 : A.I.R.(1922) (M) 99, their Lordships, Seshagiri Iyer and Kumaraswami Sastri, JJ.,

observed that orders passed u/s 73 of the C.P.C. are appealable if they affect parties to the suit. The same view is also expressed in

Venkatakrishna Pattar v. Venkatakrishna Pattar 37 Ind. Cas. 900 : 31 M.L.J 820 .: 20 M.L.T. 538 : 5 L.W. 354. If the parties to the proceedings

in question are not parties to any common suit, then the orders passed in such proceedings cannot obviously fall u/s 47 of the C.P.C. In the present

case the question arising for decision is raised in execution between parties to the suit though the 2nd defendant--the decree being one passed in a

partition suit--is also in the position of a decree-holder like the plaintiff. I, therefore, overrule the preliminary objection.

As regards the merits of the case, I am inclined to agree with the view of the learned District Judge. It has been argued that a transfer of the

decree at the instance of the appellant is not necessary in this case as the decree had already been transferred to the Negapatam Court at the

instance of the plaintiff-respondent. No authority directly bearing on the question has been cited before me by either side. The argument advanced

on behalf of the appellant overlooks the fact that the decree in question is not in the nature of a joint decree. In the partition suit the plaintiff has

obtained a money-decree and the 2nd defendant has also been given such a decree. The plaintiff''s decree can be executed without any reference

to the decree given-in favour of the 2nd defendant. The only decree for execution, now before the Negapatam Court is the decree obtained by the

respondent which has been transferred to it for execution under the provisions of the C.P.C. In my opinion the 2nd defendant-appellant is not

entitled to execute the decree made in her favour without getting it transferred at her instance to the said Court. Till such a transfer is effected the

Negapatam Court has no jurisdiction to pass orders in connection with the decree at the instance of the appellant. This C.M.S.A. fails and is

dismissed with costs.