Subramanian Chetty vs Ramaswami Chetty and Others

Krishnan, J.—This is an application to revise an order passed u/s 73 of the CPC by the District Munsif of Devakotta. The petitioner before

me was one of the decree-holders against a common judgment-debtor whose assets had been realized within the meaning of Section 73 of the

CPC and Were held by the Court. Section 73 says:

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.

Now, the petitioner before me put in an application for execution of his decree which was a decree for payment of money passed against the

same judgment-debtor, to arrest him, and this application had been admittedly made before the receipt of the assets with which we are concerned

in this case. His application to be paid rateably from the assets had, however, been rejected on the ground that, when he applied for the arrest of

the judgment-debtor, that man was not living within the jurisdiction of the Munsif''s Court but was living in Penang, where the District Munsif of

course had no jurisdiction and could not therefore have ordered his arrest. Tnis finding of fact has been arrived at mainly on the ground that, in

another petition for execution by the same decree-holder, he has stated that the man was living at Penang ; but he has explained it by saying that

that statement was wrongly put in by the vakil''s clerk who drafted that application. It is therefore doubtful whether the judgment-debtor was on the

date on which the application was made in Penang. Assuming, however, that the judgment-debtor was at Penang at the time of the decree-

holder''s application for arrest, the question is ""Does that prevent him from obtaining the advantage of rateable distribution ?"" The section is

intended to distribute equitably the assets of the common-debtor realised by the Court among the decree-holders and the one condition that is laid

down to make sure of the fact that those creditors have been diligent is that the creditors must have previously applied for execution of their

decrees, this condition excluding creditors who have"" taken no steps to realise their debts; but there is ao condition that the execution application

put in by the pady should be such as would have ended in his successfully obtaining satisfaction of his decree. The only two conditions laid down

are that he must have a money decree against the same person and that he must have applied for execution of that decree before the assets were

realised. If these two conditions are fulfilled, he is entitled to join in the rateable distribution. In the present case I see no reason to exclude the

decree-holder on the finding of the District Munsif. The fact that his application was for the arrest of a person who could not have been arrested is

quite immaterial so far as section 73 is concerned. It is even possible to imagine that, though the judgment-debtor was not, on the date when the

execution application was put in, living within the jurisdiction of the District Munsif, he might have come there before the order is passed by the

District Munsif for his arrest'', and there is nothing to prevent the District Munsif passing the order, if, by the time he passes his order, the

judgment-debtor is within his jurisdiction, although at the time the application was made, he was not within his jurisdiction. But these questions are

outside the scope of Section 73. All that the Court has to be satisfied about is that there is a money decree of which satisfaction has not been

obtained against a judgment-debtor and that the decree-creditor has shown his diligence by applying for execution of that decree before the assets

were realised. On these conditions being fulfilled the decree-creditor is entitled to join in the rateable distribution. No case exactly in point has been

brought to my notice, but some cases have been cited with reference to Article 182 of the Limitation Act which speaks of applications for

execution made in accordance with law. Even according to those cases which construe those words "" applications in accordance with law,"" an

application like the present one would be fully in conformity with the requirements of the law; though it prayed for a relief which perhaps the Court

would not have granted, it is still treated as an application in accordance with law for the purpose of Article 182 of the Limitation Act-see Bando

Krishna v. Narasimha ILR (1912) B 42. I hold therefore that the petitioner before me was entitled to join in the rateable distribution.

It has been urged before me by the learned vakil for the respondent that, as u/s 73 of the Civil Procedure Code, there is a special remedy

provided, gamely, that of a suit, I should not interfere in revision at all. No doubt, in some instances; Courts have held that it will be convenient to

make the parties adopt that remedy, but that provision does not prevent a Court from interfering u/s 115 where there is a manifest error in the

order u/s 73, and putting that error correct, as otherwise the parties will be driven to unnecessary litigation. I think this is a case in which a manifest

error has been made by the District Munsif and I feel therefore justified in interfering with the order of the Lower Court and I modify that order by

directing the District Munsif to make a fresh order u/s 73 giving rateable distribution to the petitioner before me for both of his decrees. The case

will be remitted to the District Munsif for the purpose of passing fresh orders. Each party will bear their own costs of this petition.