JAN Vs. HAJI ABDUL SATTAR

JUDGEMENT

(1.) Haji Abdul Sattar. respondent No. 1, and his wife Zohra Bi, respondent No. 2, obtained three separate money decrees against Mohd. Jan, the appellant, Mehtabuddin. respondent No. 3. and M/s. Jan Tin Industries, respondent No. 4 for Rs. 9,000.00 with costs Rupees 3,250.00 with costs and Rs. 1,300.00 with costs respectively. The decree-holders took out execution of their first decree for Rs. 9.000.00 and got attached a house belonging to the judgment-debtor, Mohd. Jan, the present appellant. Objections by his wife, under Order 21, Rule 58 of the Code of Civil Procedure, were dismissed. A declaratory suit by her claiming the property as hers met the same fate. In appeal, the trial court's judgment was modified partly to the extent that she was held entitled to a charge on the property to the extent of Rs. 2,000.00. The house was put to auction; but the appellant, on depositing the entire decretal amount in court, prayed for its release from attachment At this stage, Haji Abdul Sattar. respondent No. 1, the decree-holder, applied on July 31, 1968 tor rateable distribution of the assets held by the court among all the aforesaid three decrees in favour of the decree-holders. This application was contested. The execution court gave its decision in favour of the decree-holders, holding that the rateable distribution was permissible amongst the various decrees, even though held by the same decree- holders. The appeal of the judgment- debtor was dismissed by the Additional District Judge, Delhi. The judgment- debtor, therefore, came up to this court in execution second appeal.

(2.) The relevant portion of Section 73 of the Code of Civil Procedure reads as follows:

(3.) The above language leaves no room for doubt that applications to the court, for execution of decrees for payment of money passed against the same judgment-debtor, by rateable distribution, are required to be made by "more persons than one". The words used could have been: "a person holding more than one decrees". Such words not being there, the court is not privileged to incorporate the same, in the section, as the learned counsel for the respondent would like to be done- The intention appears to be to secure an equitable distribution of the property by placing the decree- holders, if more than one. on the same level and making the property rateably divisible among them. The question of an equal distribution would not arise if the decree-holder happens to be one. For, in such a case. he is not prejudiced if only one of his decrees in its entirety, is satisfied from the assets held by the court. If any property is still available from out of which his other decrees can be satisfied, he can proceed against that property for execution of his said decrees and there is no bar or restriction on him to do so. There is no question of unfair treatment to him in respect of his other decrees, and unfair advantage to him by the satisfaction in full of his one decree, while his other decrees remain wholly or partly unsatisfied. The reference: by the learned counsel for the respondent, as by the courts below, to S. 13 of the General Clauses Act. providing that the words in singular include the plural and vice versa, is neither relevant nor of any help to him; for the said section will apply "unless there is anything repugnant in the subject or context." The subject or context in S. 73 is the rateable distribution of the assets held by the court "among all such persons." By the very nature of things, such persons would be more than one and the term "persons" in the plural form cannot be read to mean "person" in the singular form. The decree-holders-respondents Nos. 1 and 2, although entitled to execute their decrees, are not entitled under Section 73 of the Code of Civil Procedure to any rateable distribution of assets among their various decrees against the same judgment- debtors. Under the circumstances, the appeal is accepted, as the judgment dated December 8. 1969 of the Additional District Judge, Delhi, cannot be supported. The same is set aside. There shall, however, be no order as to costs.