(Kaviraj) Bimala Nanda Tarakatirtha vs Dhirendra Nath Chandra and Others

Madan, J.—The facts of this case are that in the year 1931 the applicant''s father obtained a money decree for the sum of Rs. 36,000, and that on 27th September 1932, villages of the judgment-debtor were sold in execution for the sum of Rs. 60,000 and were purchased by two outside persons. The purchasers deposited one quarter of the purchase money on the sale date and the balance on 2nd November 1932. The sale was set aside on 16th September 1933 on an application filed under Order 21, Rule 90, but it was confirmed on appeal on 27th November 1935. At the time of the sale four other decrees were under execution against the same judgment-debtor at the instance of, persons who are the opposite party in this case. In August 1932, which was prior to the sale, these persons applied u/s 73, Civil P.C. for rateable distribution of the sale proceeds. The applications of two of the decree-holders, namely opposite party 3 and 4 were not opposed, but in the case of opposite party 1 and 2, objection was raised on the ground that on 27th November 1935, when the assets in the hand of the Court became available for distribution, their execution petitions were no longer pending, having been dismissed for default in August 1935. After the confirmation of the sale the learned Subordinate Judge passed an order allowing rateable distribution in favour of all the persons who had applied, and this application has been filed against that order so far as it relates to opposite party 1 and 2.

Sir Sultan Ahmad for the applicant contended that opposite party 1 and 2 were no longer entitled to rateable distribution on the ground stated above, but this argument appears to be contrary to the wording of Section 73 itself which runs 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 rate-ably distributed among all such persons.

In this case the opposite party had applied for rateable distribution prior to the dates, when the assets were received by the Court, namely 27th September and 2nd November 1932, and their own applications for execution were pending on that date. They had therefore done what was required of them by the law, and it became the duty of the Court to see that the rateable distribution was effected. The fact that opposite party 1 and 2 allowed their own pending execution to be dismissed for default before the rateable distribution was actually made seems to me to be immaterial. The same point arose in Byomkesh Chakrabutty v. Hemanta Kumar AIR 1915 Cal 16, where it was held that the dismissal of an execution petition after the application for rateable distribution did not affect the right to share in the distribution. In Tiruchittambala Chetty v. Seshayyangar (1882) 4 Mad 383 and in N.M.L. Chettier Firm v. Official Assignee AIR 1935 Bang 135, it was held that in order to entitle a creditor to apply for rateable distribution his own application for execution must be pending and unsatisfied at the time. In both these cases, however, the executions had been struck off prior to the application for rateable distribution, which is not the case here, and it was for this reason that the requirements of Section 73 were held not to have been fulfilled. In the Rangoon case it was pointed out that if it were held otherwise the result would be that a person whose application for execution would otherwise be time-barred under Article 182, Lim. Act, could still apply for rateable distribution, but, as I have already pointed out, the facts of the present case are different.

It is true that in the Rangoon case, the Calcutta decision cited above was dissented from, but with all respect to the learned Judges who decided that case, I do not find from their judgment that the distinguishing feature of the Calcutta case was brought to their notice, namely that in that case the execution was dismissed after the application for rateable distribution. In my opinion the order passed by the learned Subordinate Judge in this case was correct and there is no reason to interfere. I would therefore dismiss this application with costs. Hearing-fee two gold mohurs to each of the opposite party 1 and 2.

Mohamad Noor, J.

I agree.