STATE OF KERALA Vs. JOSE

JUDGEMENT

(1.) THE revision petitioner is the State. THE first respondent herein obtained a decree against one T. C. Thomas who is the second respondent herein and in execution of that decree the properties of the second respondent were sold for a sum of R s. 2 ,01,000 /- in court auction held on 8. 3. 1991. THE second respondent owned money to other creditors like respondents 3 and 4 also. THE fourth respondent, therefore, filed E. P. 280/91 seeking to recover a sum of R s. 79,110/ -. As there was balance amount after defraying the amount due to the decree holder, the claim was allowed and the sum of R s. 79,110/-traransmitted to the Court concerned for payment of the creditor, viz. the decree holder theirien. THEreafter the additional third respondent herein who had obtained a decree against the second respondent in OS. 573/ 1990 , filed an E P. for recovery of a sum of R s. 90,044. 65. That was in 1992. It was thereafter that the State came forward with a claim that amounts are due to the State and that the State is entitled to priority in the matter of amounts available. In other words, the State contended that the amounts claimed by respondents 3 and 4 could be allowed only if there was any balance left after the amounts due to the State was recovered- THE Court below considered the contention- and found that the State's claim had no merit

(2.) I have heard the counsel for respondents 1 ,3 and 4. According to them, the question of priority does not arise in so far as the Stale is not even a decree holder and there is no e. P. filed by the State. It is also pointed out that the amounts due to the state are not in respect of Land Revenue and as such there is no question of priority.

(3.) THE learned counsel for the respondents have rightly pointed out that the question of rateable distribution will come into existence only when there is claim by different-decree holders. THE term "decree-holder" according to S. 2 (3)of the CPC means any person in whose favour a decree has been passed or an order capable of execution has been made. In the instant case, the State has no case that it has obtained a decree against the juadgment debtor-second respondent or against any other person for recovery of the amounts claimed. THE State is thus not a decree holder and cannot hence make a claim for rateable distribution of the amounts. THE State has also not filed any Execution petition for attaching the amounts in question. Of course for recovery of amounts due to the State, attachment is possible under the Revenue Recovery Act also. But here is a case where the property sold in Court auction had not been attached even in exercise of powers under the Revenue Recovery Act.