Varghese Mariamma vs S. Parvathi Antharajanam

Subramania Iyer, J.—The two questions raised in this revision are

(1) whether an applicant for rateable distribution should have his execution petition pending in the court where the proceeds sought to be rateably distributed are realised and

(2) whether, if this is so, in this particular case the execution petition of the Respondent was pending or not.

The first question is concluded by Full Bench decisions both in Cochin and Travancore. See - ''31 Mad 219 (FB) (A)'' and - ''17 Trav. L. T. 533 (FB) (B)''. According to these decisions, in order to entitle an applicant for rateable distribution to that relief, his application for execution in the court which holds the assets must be pending at the time of the realisation of the assets. The Indian Courts are also of the same view. Reference may be made to - B. Nana Rao Vs. M.U. Arunachalam Chettiar and Others, , - ''Dattatraya Durgappa v. Pundlik Narayan'' AIR 1920 Bom 35 (D); - ''Bilas Mal Damodar Das v. Hari Das'' A.I.R 1929 Lah. 645 (E); - ''N.M.L. Chettiar v. Official Assignee'' A.I.R 1935. Rang 135 (F); - AIR 1929 148 (Nagpur) ; - AIR 1933 75 (Oudh) . Except for a note of dissent sounded in - ''Gopi chand v. Amir Chand'' AIR 1933 Pesh. 52 (I), it may be said that the view in India is uniform. The Judicial Commissioner in the Peshawar case bases his view on the language of the Section which does not contain the words to the effect that the execution petition should be pending as the section merely says "have made application to the court for the execution of decrees." If a claimant for rateable distribution should have made an application for execution in the particular court, unless the requisite of its pendency at the time is also taken as necessary, no purpose would appear to be served.

I consider that the purpose of the section which is sufficiently indicated by the words used therein, can be served only if it is regarded that the pendency of the execution application at the time in question, is necessary to entitle the applicant to rateable distribution. The decision of the erstwhile Travancore High Court in - ''Thampikunju v. Fakardeen'' 17 Trav LJ 506 (J) which was before the Full Bench decision mentioned above, takes a different view. Though that earlier decision has not been expressly overruled by the Full Bench, the learned Judges refer to it, say they dissent from the view therein and take the opposite view. The court below follows the earlier decision in 17 Trav LJ 506 (J)'' on the ground that it had not been overruled by the Full Bench; but whether overruled or not, the later Full Bench decision is the governing authority and the court below should have followed it in preference to the earlier decision of a division bench of the same High Court.

The second point raised is whether the execution application was pending in the court below. Learned Counsel for the Respondent contends that it was pending and in support of his contention he has produced in this Court, a certified copy of the execution diary. It is marked here as Ex. I. That paper reveals the following facts. A receiver was appointed in Anr. proceeding over the properties charged by the decree, before execution proceedings started. The decree-holder Respondent proceeded to execute the decree without impleading the receiver and there was an auction sale of some of the items. The receiver intervened and sought to have the sale set aside as having been held without jurisdiction in his absence as he was in possession of the properties at the time as receiver. His petition was allowed and the sale was set aside.

The decree-holder-Respondent thereafter applied to the court for impleading the receiver in order that execution may proceed. Notice upon that application was ordered by the court and a day was fixed for its return. The Respondent not having taken steps to have the notice issued the application for impleading the receiver as also the execution petition were dismissed on the day to which the case stood posted.

The argument urged by learned Counsel for the Respondent is that the impleading of the receiver though necessary, the default in complying with the order of the court to take steps in that direction may involve at the most a dismissal of the application for impleading, and not the execution application. On the facts already stated, in the absence of the receiver it was impossible to proceed with the execution and the sale held in his absence had been set aside for that reason. Under the circumstances the dismissal of the execution petition on the day to which it was posted for getting the receiver, who was a necessary party, impleaded, was a judicial order and if so, the execution petition was not pending at the time when the assets whose rateable distribution is in question, were realised by the court.

The view taken by the court below cannot therefore be supported and this revision petition should be allowed with costs.