Cheriyan vs Acheyamma Mathen

M.S. Menon, J.—The decree holder in O. S. No. 12 of 1115 of the District Court of Alleppey is the petitioner in this revision petition. He filed a petition for the execution of his decree before the District Court of Mavelikkara, after transfer to that court, on 4-8-1124. That petition was dismissed on 18-2-1125 by an order which we are not prepared to consider as a ministerial or administrative order passed for statistical purposes. The respondent in this revision petition and the decree-holder in O. S. No. 176 of 1116 of the District Court of Mavelikkara is one and the same person. In execution of the decree in O. S. No. 176 of 1116-against the same judgment-debtor-the respondent brought certain properties to sale on 26-10-1125, purchased the properties himself, and deposited the sale proceeds in court in view of the petitioner''s claim for rateable distribution.

The petitioner''s claim for rateable distribution was rejected by the Additional District Judge of Mavelikkara by an order dated 3-8-1959, and it is the correctness of that order that is challenged in this revision petition. There is no doubt that the petitioner filed his execution petition in O. S. No. 12 of 1115 prior to the receipt of the assets in court in pursuance of the execution of the decree in O. S. No. 176 of 1116. It is equally clear that the petitioner''s execution petition was not pending on the date of the receipt of the assets in court. The sole question for determination is whether the non-pendency of the execution petition on the date of the receipt of the assets in court will disentitle him to rateable distribution.

Section 73(1) of the Code of Civil Procedure, 1908, omitting the provisions thereto, reads as follows:

Where assets are held by a Court and more persons than one have before the receipt of such assets, made application to the court for the execution of decrees for the payment of money passed against the same judgment-debtor and have not obtained satisfaction thereof, the assets, after deducting the costs of realization, shall be ratably distributed among all such persons.

Whether an application for execution filed and dismissed before the receipt of the assets will support a claim for rateable distribution has been the subject of controversy. We take the view that in order to entitle a decree holder to claim rateable distribution it is essential that his application for execution should be pending and undisposed of at the time of the receipt of the assets, and that if his application had been struck off or dismissed-by a judicial order, and not one passed for administrative or statistical purposes-before that date, he cannot participate in the distribution. The same is the view adopted in I. L. R. 4 Madras 383, A. I. R. 1935 Rangoon 135, A. I. R. 1937 Nagpur 16, and A. I. R. 1953 T. C. 475.

The latest decision expressing a contrary view to which our attention has been drawn is A. I. R. 1956 Hyderabad 65. In that case a Full Bench of the High Court of Hyderabad said:

Once an application for execution has been made it does not matter if it is dismissed and was not pending when the amount was received in Court, provided it has not been satisfied or barred by limitation.

We are unable to accede to this statement of the law and that for the reasons given in the decision mentioned in the last preceding paragraph. In the light of what is stated above this revision petition has to be dismissed and we do so. No costs.