Dhoolcha vs Leelabai

T.C. Shrivastava, J.—This petition for revision is by the decree holder against the order of the First Additional District Judge, Indore, dated 24-10-1959 refusing to grant ratable distribution to him.

In execution of a decree obtained by the applicant, he attached a house belonging to the judgment-debtor and got it sold for Rs. 20,900 on 15-12-1958. The applicant had another decree against the same judgment-debtor which was pending for execution in the Court of Civil Judge First Indore. He got that decree transferred to the First Additional District Judge''s Court on 4-2-1959. He did not file any application for execution of this decree in the Court of the First Additional District Judge Indore, but applied for retable distribution only. There were other decree-holders who had also filed executions in the Court of the Additional District Judge and had applied for ratable distribution. They have been allowed ratable distribution, but the applicant has been refused any share in the assets realised. He has, therefore, come up in revision.

Shri Vijayvargiya for the applicant admits that the decree-holder had not attached the property sold in the Court of the Additional District Judge in execution of his decree in the Court of the Civil Judge First Class. He has also admitted that no a application for execution was filed by the deree-holder in the Court of the Additional District Judge after the decree was transferred to that Court. However he contends that these matters are irrelevant as the right of the applicant decree-bolder to ratable distribution arises on reading Sections 63 and 73 of the Code of CPC together. He has relied upon the decision in AIR 1937 80 (Nagpur) .

The material part of Section 63 of the Code of CPC is as follows:

Where the property not in the custody of any Court is under attachment in execution of decrees of more Courts than one, the Court which shall receive or realise such property and shall determine any claim thereto and any objection to the attachment thereof shall be the Court of highest grade, or, where there is no difference in grade between such Courts, the Court under whose decree the property was first attached.

Section 73 is as follows:

(1) Where assets are held by a Court and more persons than one have before the receipt of such assists(sic), 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 rateably distributed among all such persons:

.... ... ... ...

It is true that the two sections have to be read together to understand the powers of the Court in matters of retable distribution. It has been held in Zumberlal''s case (supra) that a claim for rateable distribution is covered by the words "any claim thereto" used in Section 63. The provisions in that section determine the Court which shall realize the property and determine the claims thereto; but the condition which is necessary to attract the provisions of that section is that the property must have been under attachement by more Courts than one. The object of the section is to remove the conflict of decisions by different Courts regarding the claims to the same property. If the property is under attachment by only one Court, this section has no application. Section 76(sic) deals directly with the question of rateable distribution. The conditions necessary to support a claim for rateable distribution are; that the assets must be held by the Court and that the application for execution of the decree must have been made to such Court by the decree-holders holding decrees against the same judgment debtor. The contention of Shri Vijayvargiya that the words ''''to the Court for the execution of decrees" do not refer to the Court holding the assets cannot be supported on a true interpretation of the section. They are preceded by the words "a Court" and it is to that Court that the words must have reference. If Section 73 stood alone, no decree-holder, who had not filed an application for execution in the Court holding the assets, would be entitled to claim rateable distribution. Further, a mere application requesting for ratable distribution is not enough and an application for execution satisfying the requirements of Order 21, Rule 11, CPC Code, is necessary. (See AIR 1929 148 (Nagpur) .

We have then to see whether Section 63 dispenses with the requirement of an application for execution to the Court holding the assets. On reading the two sections together, it appears to me that Section 63 is an exception to Section 73 It defines the Court which will deal with the property attached by different Courts and if the Court specified in that section gets the power to determine the claim for ratable distribution, obviously that Court will have to exercise the power and determine the rights of the parties for ratable distribution irrespective of the fact whether an application for execution as required by Section 63 had been filed by the claimants in the Court receiving the assets. To that extent, the provisions in Section 63 are independent of what has been provided in Section 73. In Zumberlal''s case (supra), it has no doubt been stated that as an attachment u/s 73 is not necessary, it should not also be necessary u/s 63. However, these general observations are made in the context of the particular facts of that case. All that is meant is that if several decree holders have applied for execution in a Court and one of them has attached property in the same Court and the same property is under attachment by a Court which has power to decide the claims u/s 63, all the decree-holders in the first Court are entitled to ratable distribution irrespective of the fact that some of them had not attached the same property. It is nowhere laid down in that case that Section 63 will have application to a case where there has been only one attachment by one of the decree holders. Such a conclusion would be contrary to the language of Section 63 which can apply only when there exists more than one attachment by different Courts. The following observations in Radhavallabha v. Dwarkadas Vithaldas, (AIR 1946 Nag. 170), regarding the scope of Section 63 are important.

In order to bring the case within the scope of Section 63 it is necessary that several decree-holders who are executing their decrees against the same judgment-debtor in different Courts must have attached the same property or properties belonging to the judgment debtor.

In this decision, reference was made to the decision in Fatima Khatun v. Ashananda Behara, (ILR 1939 Cal. 498) which laid down that it is only when attachments of the name property of the judgment debtor are made by more than one Court, that the Court of the highest grade among the attaching Courts has the power u/s 63, CPC Code, to realise the amounts and to order ratable distribution. The decision in Zumberlal''s case (supra) has been explained thus:

The case before Bose J. reported in ILR (1937) Nag. 219 was one in which the Court of Superior jurisdiction had lawfully attached the property but the other decree holders who claimed ratable distribution had not attached the property; and it was held that such other decree-holders could claim ratable distribution even if they had not attached the property provided the decree-holders in the Court of Superior jurisdiction had attached and some other decree-holder had also attached, though some of the other decree-holders of the inferior Court had not attached. The facts of that case were different from the facts of the present case and that case was decided on the facts of that particular case, though there are certain observations which misled the Court below to hold that different view was taken The view taken in ILR 1939 1 Cal. 488 is the proper view.

I have no doubt that the provisions of Section 63 have no application to a case where there is only one attachment of the property of the judgment-debtor. In the instant care, the applicant did not attach the judgment-debtor''s property in execution of his decree in the Court of Civil Judge (First Class) and therefore Section 63, CPC Code, had no application to the case. He could not get advantage of the provisions in Section 73 also because he had filed no application for execution in the Court of the Additional District Judge. It has, therefore, been rightly held that he was not entitled to ratable distribution of assets.

The petition for revision is dismissed with costs. Hearing fee is fixed at Rs. 25 only.