FULSINH KESRISINHJI Vs. VALLABHDAS HARGOVANDAS

JUDGEMENT

(1.) This is an appeal against an order passed on Ex. 167 in special Darkhast No. 11 of 1956 on the file of the Civil judge Senior Division Panch Mahals at Godhra.

(2.) Shortly stated the facts leading to the present appeal are: that the appellant obtained a decree against respondent No. 2 for Rs. 33476-75. Respondent No. 1 filed Special Darkhast No. 11 of 1956 for executing the decree obtained against respondent No. 2. In this Darkhast some of the properties of respondent No. 2 judgment-debtor were attached and sold at a Court auction and the sale-proceeds were deposited in the Court and the sales were confirmed. In the mean-time the present appellant who had obtained a decree against respondent No. 2 the same judgement- debtor filed Special Darkhast No. 7 of 1962 on 28-8-1962 for executing the decree. In this Darkhast the relief claimed was that the amount should be awarded by rateable distribution from the amount recovered by attachment and sale of the properties of the judgment-debtor in Special Darkhast No.11 of 1956 filed by respondent No. 1. It was also prayed that Special Darkhast No. 7 of 1962 filed by the preset appellant should be kept and heard along with Special Darkhast No. 11 of 1956 filed by respondent No. 1 against respondent No. 2. Respondent No. 1 in his Special Darkhast No. 11 of 1956 gave an application Ex 107 inter alia contending that the execution application filed by the appellant against respondent No. 2 is not legal and is not maintainable and the appellant would not be entitled to rateable distribution from the assets of the judgment-debtor realised in the Darkhast filed by respondent No. 1. Two contentions were raised in this application: (1) that the decree obtained by the appellant against respondent No. 2 is a collusive decree and (2) that the application for execution in which the only prayer made is one for rateable distribution is not an application for execution according to law and it is not maintainable. A notice of this application was served upon the present appellant and after hearing both the sides the learned Judge held on the first contention that the decree is not collusive. On the second contention the learned Judge held that where a decree-holder in his application for execution claimed the only relief of rateable distribution out of the sale-proceeds of the assets of the judgment-debtor in another pending execution application against the same judgment-debtor it is not a mode of execution for which assistance of the Court is sought as envisaged by O. XXI Rule 11 and therefore it is not an application for execution according to law and in accordance with this finding dismissed Darkhast No. 7 of 1962 filed by the present appellant. The appellant having been dissatisfied with this order has preferred this appeal.

(3.) A narrow but interesting question relating to the interpretation of O. XXI R. 11(2)(j) and sec. 73 of the Code of Civil Procedure arises in this appeal. The question for consideration is whether an application for execution of a money decree in which the mode in which assistance of the Court is sought is one for rateable distribution of the assets of the judgment-debtor realised in another pending execution application could be said to be an application for execution in accordance with law as envisaged by sec. 73. Order XXI Rule 11(2) provides that every application for the execution of a decree shall be in writing signed and verified by the applicant or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case and shall contain in a tabular form the particulars mentioned in sub-rule 2 to 2(j). Clause (j) which is relevant for our purpose is as under:-