Bibi Uma Habiba vs Mt. Rasoolan and Another

Foster, J.—The appellant held a money decree for her dower, her deceased husband being one Manzoorul Haq. In the course of the execution, after realization of certain assets, the respondent Bibi Rasoolan put in a claim for rateable distribution u/s 73 of the Code of Civil Procedure. Thereupon the decree-holder Bibi Uma Habiba made objection to this intrusion in the course of her execution on the ground that the decree of Bibi Rasoolan was obtained in collusion with the judgement-debtors. She therefore asked the Court to hold an enquiry into the matter with a view to a decision whether Bibi Rasoolan was in possession of a bona fide decree and whether she should not be excluded from the rateable distribution. The learned Subordinate Judge quoted a number of cases ending in Shankar Sarup v. Mejo Mal (1901) 23 All 313. In this last case their Lordships of the Judicial Committee remarked:

"The 95th section" (that is the section which corresponds to the present Section 73):

While providing that the Judge under whose authority the sale takes place shall distribute the proceeds, provides also that if all or any of such assets be paid to a person not entitled to receive the same any person so entitled may sue such person to compel him to refund the assets.... The scheme of Section 295 is rather to enable the Judge as matter of administration to distribute the price according to what seems at the time to be the rights of parties without this distribution importing a conclusive adjudication on those rights, which may be subsequently readjusted by a suit such as the present.

The learned Subordinate Judge relying on this and other cases several of which are expressly opposite found that the objection could not be made the occasion of a judicial enquiry whether there was a right to rateable distribution by virtue of the decree exhibited. It seems to me that the learned Subordinate Judge took a correct attitude in this matter. The section-itself specifically states that when there are assets in the Court, they may be rateably distributed between the claimants money decree-holders; and where all or any of the assets liable to be rateably distributed under this section are paid to a person not entitled to receive the same, any person so entitled may sue such person to compel him to refund the assets. It appears to me therefore that the remedy indicated in the second clause of Section 73 is the only remedy. The expression of one thing is the exclusion of the other."

It was urged that the matter really was u/s 47, but it seems to me that the Privy Council decision must be deferred to, and this matter must be regarded as a purely ministerial act which has no element of a judicial decision.

I would therefore dismiss this appeal without costs and the Civil Revision is also dismissed.