Kunchaparti Venkatachellam vs Vemuri Subrahmanyam and Another

Patanjali Sastri, J.—This revision petition arises out of the refusal of the Court below to allow the petitioner a share of the realised assets of

his judgment-debtor in a rateable distribution thereof u/s 73 of the Code of Civil Procedure. The petitioner obtained a transfer of the decree in

O.S. No. 216 of 1929 on the file of the lower Court passed against one Nageswaram, and the respondent obtained a decree against the same

person and his brothers in O.S. No. 38 of 1930 in the same Court. In execution of the latter decree, properties of the brothers were sold on 20th

July, 1936, and the petitioner who is said to have applied on 14th July, 1936, to execute his decree claimed a rateable share of the proceeds of

such sale. The Court below rejected the claim on the ground that the transfer of the decree in favour of the petitioner had not been recognised by

the Court before the date 0f the realisation of the assets, and the correctness of this view is challenged by the petitioner before me.

I am of opinion that the decision of the lower Court is not warranted by the terms of Section 73. All that the section requires is that the person

who claims rateable distribution should have applied before the receipt of assets by the Court, for execution of a decree for payment of moneys

passed against the same judgment-debtor whose assets have been realised. The section says nothing about the Court recognising the transfer when

the transteree of a decree applies for rateable distribution, and there can be no justification for reading into the. provision a condition which is not

to be found there. A transfer of a decree by an instrument in writing takes effect from the date of such transfer (see Sadagopachariar v.

Ragunathachariar ILR (1909)Mad. 62 and the transferee is entitled to apply for executing the decree under Order 21, Rule 16 of the Code. The

Court, before ordering execution has, no doubt, to issue notice of such application to the transferor and the judgment-debtor and hear their

objections, if any, but it is plain that Section 73 does not require that the objections of the transferor should also have been enquired into and

overruled before the receipt of such assets by the executing Court. As a matter of fact it is said that the Court has since recognised the transfer of

the decree to the petitioner.

The respondents'' learned Counsel has argued that a transferee of a decree is not a ''decree-holder'' within the meaning of that expression as

defined in Section 2(3) of the CPC of 1908 and that therefore he is not entitled to apply for a rateable distribution u/s 73 until the Court has

adjudged the validity of his transfer. He drew attention to the fact that the definition of decree-holder in the old Code included the transferee of a

decree and that those words have been omitted from the definition in the present Code. I am unable to appreciate the relevancy of this argument.

Section 73 which regulates rateable distribution of a judgment-debtor''s assets received by the executing Court does not use the expression

''decree-holder'' but refers only to persons who have applied for the execution of decrees f or the payment of money passed against the same

judgment-debtor before the receipt of assets by the Court and directs the rateable distribution of such assets among all such persons. Its language

is certainly wide enough to cover transferees of decrees and it is difficult to see how the definition of ''decree-holder'' is relevant in interpreting the

scope of this section. The respondents'' counsel pointed out that Clause (c) of Section 73(1) uses the expression ""holders of decrees for the

payment of money"" but it is an obvious fallacy to apply the definition to these words though they may be but an amplification of the expression

defined in the statute. These words in their natural sense are of sufficient amplitute to include transferees of such decrees and their ordinary meaning

cannot be cut down with reference to the definition of decree-holder. Nor can the use of this expression in the marginal note to the section be

regarded as controlling and restricting the plain language of the provision itself. I have therefore no hesitation in rejecting this argument, and holding

that the petitioner is entitled to receive a rateable share of the assets held by the lower Court so far as they represent Nageswaram''s share of the

properties brought to sale.

The respondents'' learned Counsel has however pointed out that it does not clearly appear from the record that the petitioner did in fact apply

on 14th July, 1936, to execute his decree as alleged by him in his affidavit filed in this Court, and suggested that the matter should be enquired into.

I order accordingly.

In the result, the civil revision petition is allowed and the case will be remitted to the lower Court for disposal according to law in the light of this

judgment. Costs will abide and follow the result.