GOVINDAN MASTER Vs. JANAKI V

JUDGEMENT

(1.) The question urged for a decision is whether, if pending an application for execution filed by a person entitled to rateable distribution to the court which was holding the assets the court has disbursed the amount to the holder of decree in which case the amount was deposited, it is within the power of the executing court to direct the holder of decree who received the amount to pay the amount rateably payable to the applicant for rateable distribution

(2.) Petitioner challenges Ext. P-4, order dated June 30, 2010 passed by the learned Sub Judge, Hosdurg on E.A. No. 108 of 2010 in E.P. No. 179 of 2009 in O.S. No. 84 of 2009. Petitioner was the decree-holder in the said suit. He obtained a decree for recovery of money from the defendant in O.S. No. 84 of 2009 and filed E. P. No. 179 of 2009 to execute that decree. Pending suit court had attached the amount in the custody of 5th respondent--garnishee, a Co-operative Bank on 24-10-2009 as per order on I.A. No. 810 of 2009. On passing the decree, petitioner filed E.P. No. 179 of 2009 on 28-11-2009. Pursuant to the order passed by the executing court, garnishee deposited the amount attached in the executing court. In the meantime, first respondent obtained a decree against the defendant in O.S. No. 98 of 2007. He filed E. P. No. 185 of 2009 in the court which passed the decree in O.S. No. 84 of 2009 and where the garnishee--5th respondent deposited the attached amount. It is not disputed that in E.P. No. 185 of 2009 first respondent claimed rateable distribution of the amount attached by the petitioner and deposited in court. While E.P. No. 185 of 2009 was pending executing court recorded full satisfaction in E.P. No. 179 of 2009 on 10-3-2010. On 20-3-2010, first respondent filed E.A. No. 108 of 2010 (in E.P. No. 185 of 2009) to direct petitioner make available the sum of Rupees One lakh which according to the first respondent is rateably due to him from the amount attached and which was in the custody of the court as produced by the fifth respondent. That application was allowed by the executing court as per Ext. P-4, order. Learned counsel for petitioner challenging Ext. P-4, order contended that first respondent filed E.A. No. 108 of 2010 only on 20-3-2010 after full satisfaction was recorded in E.P. No. 179 of 2009 on 10-3-2010 and thus the decree in O.S. No. 84 of 2009 in favour of petitioner was fully satisfied. What remained thereafter was only the ministerial act of issuing cheque for the amount in favour of petitioner. Learned counsel has placed reliance on the decision of the Supreme Court in Kotak & Co. v. State of U.P., 1987 1 SCC 455 to contend that request for rateable distribution should have been made by the first respondent when the assets were held by the executing court and not after the property in the money which was in the custody of the court has passed to the petitioner. It is also argued by learned counsel that in view of sub-sec. (2) of Section 73 of the Code of Civil Procedure (for short, "the Code"), first respondent if aggrieved by the recording of full satisfaction of the decree in E. P. No. 179 of 2009 has to file separate suit against petitioner for refund of the amount. It is contended that the executing court in the circumstances ought not have passed Ext. P-4, order which amounts to a review of the order recording full satisfaction in E. P. No. 179 of 2009 in O.S. No. 84 of 2009.

(3.) In response, it is argued by learned counsel for respondent that E. A. No. 108 of 2010 is inconsequential so far as right of the first respondent for rateable distribution is concerned, as what was required under the law was only that first respondent should have filed the application for execution seeking rateable distribution in the court which was holding the assets. It is pointed out that first respondent filed E. P. No. 185 of 2009 on 13-12-2009 while the amount attached was in the custody of the court. It is also pointed out that on 10-3-2010 when full satisfaction was recorded in E. P. No. 179 of 2009 (in O.S. No. 84 of 2009) request for rateable distribution made by the first respondent in E.P. No. 185 of 2009 was pending consideration of the executing court. The executing court was not legally correct in recording full satisfaction in E. P. No. 179 of 2009 on 10-3-2010. It is pointed out that when E. P. No. 185 of 2009 requesting rateable distribution was pending consideration, the executing court was bound to invoke Sec. 73 of the Code and distribute the amount rateably among petitioner and the first respondent. If that was not done, it was a mistake committed by the court for which first respondent may not be penalysed. Learned counsel has placed reliance on a Division Bench decision of this Court in Boban v. Sajith Kumar, 2003 3 KerLT 137 It is also argued that sub-sec. (2) of Sec. 73 of the Code is only an enabling provision and did not bar the executing court to correct its mistake in recording full satisfaction in the execution petition filed by the petitioner when the request for rateable distribution was pending, and direct petitioner to deposit the amount which rateably is due to the first respondent.