VARGHESE MARIAMMA Vs. S. PARVATHI ANTHARAJANAM

JUDGEMENT

(1.) THE two questions raised in this revision are

(2.) 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 - 'Nana Rao v. Arunachalam' : AIR 1940 Mad 385 (C), - 'Dattatraya Durgappa v. Pundlik Narayan', A.I.R. 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); - 'Balaji v. Gopal' : A.I.R 1929 Nag 148 (G); - 'Sital Bakhsh v. Jang Bahadur' : A.I.R. 1933 Oudh 75 (H). 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.

(3.) 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.