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Judgment
Venkatasubba Rao, J.—The question that arises is, whether proviso (c) to Section 73 of the CPC applied. A decree was obtained by the
first Respondent''s predecessor and by virtue of that decree, a charge was created in respect of the judgment-debtor''s property. It is stated,
though in my opinion it is an unnecessary detail, that the suit filed by him was to entorce his unpaid vendor''s lien. The first respondent brought the
property to sale, but before the realisation of the assets, the petitioner in this Court, the rival decree-holder applied for rateable distribution. The
lower Court has, after carefully considering the question, negatived his claim.
Mr. R. Gopalaswami Aiyangar for the petitioner contends that proviso (c) applies where the charge is a pre-existing one i.e., where it exists
independent of the decree and not where as in the present instance, it is created by the decree itself. There is no warrant in the words of the
Section for this limited construction; on the contrary, there is no reason why a decree which for the first time creates a charge, should be excluded
from the operation of the proviso. The relevant words are, ""a decree ordering its sale (the sale of Immovable property) for the discharge of an
incumbrance thereon"". These words are quite general and apply to both kinds of decrees.
Secondly, it is argued that the first respondent having attached the property and brought it to sale, he should be deemed to have waived his right
to treat the decree as one creating a charge. There is no force in this contention; to have attached the property was a superfluous and indeed a
wrong step, but, that does not mean, that an error in regard to the procedure adopted deprives party of his substantive rights.
In the result, I hold that the lower Court''s order negativing the petitioner''s right to rateable distribution is right. The Civil Revision Petition fails
and is dismissed with costs.