Chokkalingam Chettiar and Others vs Muthuswami Goundan and Others

Varadachariar, J.—Mr. K.V. Ramachandra Aiyar has raised an interesting question in this case. Both sides admit that there is no decision

dealing with this question and the arguments before me have proceeded mainly upon general considerations and a few rules of the Code.

At the outset, I pointed out to Mr. Ramachandra Aiyar that, though this Court has sometimes entertained revision petitions against orders u/s 73

of the Civil Procedure Code, it is only as an exception, because this is one of the class of cases where the aggrieved party has another remedy by

way of suit. Mr. Ramachandra Aiyar contended that, if the point raised in the Civil Revision Petition is fairly clear and this Court can decide the

matter once for all, it was scarcely necessary to drive the parties to another suit and I have accordingly heard him at some length. It may be that the

learned Subordinate Judge was not justified in his remark that rateable distribution is a matter of equity (cf. however Thakurdas Motilal v. Joseph

Iskender ILR (1917) Cal. 1072 and it is true that the Court has got to deal with it on the terms of Section 73. Having had the benefit of the

argument, I see no reason to differ in the result from the Lower Court''s order. As the matter is one, of first impression I should like to indicate the

reason for the above conclusion.

Section 73 of the Code provides that the application for rateable distribution must be made before ,the assets are received. Dealing with the

persons to whom the money should be distributed it speaks of them as persons who "" have not obtained satisfaction "" of their decrees. The

relevant facts in this case are that the petitioner, who was the decree-holder in O.S. No. 307 of 1927 on the file of the Sub-Court of Coimbatore,

had obtained a decree against two sets of defendants and in execution thereof brought to sale three items of properties, all the sales taking place on

2nd April, 1930. The respondent is the decree-holder in O.S. No. 917 of 1928 on the file of the Court of the District Munsif of Tirupur. His right

to rateable distribution is not disputed, but the point raised is as to the basis on which the proportion as between the two rival decree-holders is to

be fixed. The difficulty in determining this question has arisen from the fact that the decree-holder in O.S.No. 917 of 1928 could claim rateable

distribution only from out of the sale proceeds of item 1 and half of item 2, because it is only against the owner of so much of the property sold that

he has obtained a decree. The learned Subordinate Judge has proceeded on the footing that in calculating the basis with reference to which the

amount payable to the petitioner is to be fixed, he must treat his decree as satisfied to the extent of the proceeds realised by the sale of the

properties belonging to the other judgment-debtor. It is stated in his order--and it has not been denied before me--that the sales of the other items

had been confirmed before the date of his order, so that their sale proceeds were available to the decree-holder for satisfaction of his decree debt

and if there was any delay in applying them in part satisfaction of his decree, it was merely by reason 6f the decree-holder not taking steps to draw

the money.

It cannot be disputed that in a question of rateable distribution, only the unsatisfied portion of the decree ought to be taken into account (see

Sarat Chandra Kundu v. Doyab Chand Seal 3 C.W.N. 368). Mr. Ramachandra Aiyar contends that the learned Judge was not entitled to reduce

the amount due to the decree-holder in O.S. No. 307 of 1927 by taking into account the sale proceeds of the second set of properties because

this amount could not be treated as having been received by the decree-holder either on the date of the application for rateable distribution'' or on

the date on which the sale was held or even on the date on which the sale proceeds were paid into Court, because the sale may not be confirmed

at all and it will therefore not be right to treat this amount as available to the decree-holder at all. In fact, he contends that wit is the actual receipt

by him before the date of his application for rateable distribution that ought to be the test or at least before the date of receipt of assets by the

Court and not anything that may happen after the date of the application or the receipt of assets by the Court. I am unable to accept this extreme

contention. When Section 73 speaks of a person not having obtained satisfaction of his decree, the insertion of these words after the reference to

the application having been made before the receipt of assets clearly suggests that the question of satisfaction or non-satisfaction may have to be

determined with reference to some date later than the application for rateable distribution. I put to '' Mr. Ramachandra Aiyar, for the sake of

illustration, a case in which a decree-holder to whom some amount was due when he applied for rateable distribution has in fact subsequently

received the whole amount due to him under his decree before the time for rateable distribution arrived and wished to know whether according to

his contention rateable distribution should be awarded even to such a decree-holder. Mr. Ramachandra Aiyar no doubt felt that logically he must

go that length but it seems to me it proves too much (cf. Sarat Chandra Kundu v. Doyab Chand Seal 3 C.W.N. 368). He was no doubt right in his

contention that the mere fact of the sale having taken place should not be treated as satisfying the decree-holder''s decree to the extent of the

possible sale proceeds; because, it is clear from Rule 84 of Order 21, that if the sale is not completed by the purchaser, the 25 per cent, deposit

may be forfeited to the Government, and this shows that that amount cannot be treated as necessarily available to the decree-holder. It may even

be, that, after the whole sale price has been deposited into Court, application may be pending for setting aside the sale by some persons interested

in the property. I am therefore willing to recognise that during such periods the sale proceeds cannot be regarded as earmarked for the satisfaction

of any particular decree. But after the sale had been confirmed and when the sale proceeds paid into Court are at any moment available to the

particular decree-holder, I do not see any reason why he should not be regarded as having obtained satisfaction of his decree to that extent.

The above considerations lead me to think that the learned Subordinate Judge came to a correct conclusion. At any rate, the case cannot be

said to be one in which the point is so clear that it can be finally decided in revision proceedings. As already indicated, the petitioner has his remedy

by suit to have this and all other cognate questions finally settled between the parties.

The revision petition is dismissed with costs.