Gopal Dai vs Chunni Lal

Oldfield and Brodhurst, JJ.—We are of opinion that Section 295 of the CPC does not apply to this case.

The plaintiff and defendant held decrees against Babu Bishambhar Nath, and took out execution of them, and the judgment-debtor''s estate, mauza Barara, was attached, but no sale took place. The judgment-debtor paid into Court the sum of Rs. 1,200 on account of the plaintiff''s decree, and the question is whether the plaintiff is entitled to this sum, or it was rateably divisible among the decree-holders.

We think that this sum cannot be held to be assets realized by sale, or otherwise, in execution of a decree, so as to be rateably divisible u/s 295. It cannot be said that there was a realization from the property of the judgment-debtor, and so the payment does not come within the meaning of Section 295. The payment would not release the property from attachment, or stop sale in execution of the defendant''s decree.

We concur in the view of the law taken by the Bombay High Court in Purshotamdass Tribovandass v. Mahanant Surajbharthi ILR 6 Bom. 588 which supports the view we take here.

The plaintiff is therefore entitled to a decree, and we reverse the decree of the lower Court, and decree the claim with all costs.