R.M. Ramanathan Chettiar vs M.R.M.S. Chockalingam Chettiar

Ramamurti, J.—This revision petition arises out of an application filed by the petitioner under S. 73 C.P.C. for rateable distribution. He filed

O. S. 2347 of 1960 on the file of the City Civil Court, Madras and obtained a decree on 22-12-1960 for a sum of Rs. 25000. During the

pendency of the suit, he applied for an order of attachment before judgment and the interim order was made absolute on 20-12-1960. The

petitioner filed an application on 28-3-1961 for transfer of this decree to the Sub-Court, Devakottai, for execution, as the properties which were

attached before judgment by the petitioner were situate within the territorial jurisdiction of the Sub-Court at Devakottai. His application for transfer

was ordered on 1-4-1961 by the City Civil Court and on the same day the decree-holder had applied for execution of the decree in the

Devakottai Court.

The respondent here who obtained a decree against the judgement debtor in O. S. 206 of 1960 brought the property to sale in E. P.488 of

1960 District Munsif Court, Devakottai. The sale was held on 20-3-1961 and on 30-3-1961 the purchaser deposited the balance of the sale

proceeds deducting what he had already paid on the date of the sale. The application for rateable distribution was filed by the petitioner making the

respondent alone a party.

Learned counsel for the respondent states that there are other decree-holders to whom also a portion of the sale proceeds had been distributed

and that the petitioner should have impleaded them also as parties to the application, and that the petition should have been rejected for non-

joinder of those decree-holders. I see considerable force in this argument; but as I am disposing of this revision petition on a more fundamental

point, I do not think it is necessary to express my final opinion.

On behalf of the respondent it is objected that the petitioner is not entitled to rateable distribution the petitioner, on his own showing has not

satisfied the conditions of S. 73 C.P.C. to entitle him to a share in the sale proceeds.

Under S. 73 C.P.C., the petitioner must have applied to the court in which the assets are held in this case Dist. Munsif Court, Devakottai,

before the receipt of such assets i.e., 30-3-1961. Admittedly, no such application for execution had been filed by the petitioner. Learned counsel

for the petitioner urges that the application for transfer, which he filed in the City Civil Court, Madras on 28-3-1961, should be regarded as an

application for execution and that when the decree had been transferred, he must in law be deemed to have applied for execution even in the

transferee court. It is impossible to accept this contention.

There is obvious difference between an application for transfer and an application for execution. An application for transfer need not be in the form

of an application for execution and it is only after the transfer is ordered that the decree-holder has to apply for execution complying with the

provisions of Order 21 C.P.C. The application for transfer is merely a step-in-aid and surely not an application for execution. The result, therefore,

is that the petitioner not having applied for execution in the District Munsif Court, Devakottai, before the receipt of the assets is not entitled to claim

rateable distribution. The revision petition fails and is dismissed. No costs.

Revision dismissed.