E P ABDUL LATHEEF Vs. VINODAN

JUDGEMENT

(1.) A decree-holder was permitted to bid the attached property in Court auction sale and to set off the purchase money towards the amount due under the decree as provided under Rule 72 of Order XXI of Code of Civil Procedure. Is the executing Court competent to pass order for rateable distribution as provided under Section 73 of the Code in an application filed by another decree-holder is the question to be settled.

(2.) Petitioner is the decree-holder in O.S. No. 164/01. First respondent is the decree-holder in O.S. 258/01. Petitioner obtained an order of attachment before judgment of the property sold in E.P. 363/01 as per order dated 14-8-01. Respondent in his suit obtained an order of attachment before judgment on 13-8-2001. Respondent filed E.P. 86/2004, for realisation of the decree debt in O.S. 258/2001. Petitioner sought sale of the attached property in that E.P. 363/01. The property of judgment-debtor was sold in that E. P. 363/01. Petitioner was permitted to bid and set off as provided under Rule 72 of Order XXI by the executing Court. The property was purchased by petitioner as auction purchaser for Rs. 75,000/-. It was not sufficient to satisfy the decree debt in O.S. 164/2001. Respondent filed E.A. 163/ 2004 in E. P. 363/2001 for rateable distribution of the assets realised by the sale of the attached property in E. P. 363/2001. E.A. 163/04 was allowed overruling the objection raised by the petitioner. Executing Court directed petitioner to deposit Rs. 30,000/- out of purchase money for rateable distribution to first respondent. This petition is filed under Article 227 of Constitution of India challenging that order.

(3.) Learned Counsel appearing for petitioner and first respondent were heard.