K SRINIVASA IYENGAR Vs. NOOR MUHAMMAD ROWTHER

JUDGEMENT

(1.) THE plaintiff is the appellant. He obtained a decree in O. S. 220 of 1957 against one Rajagopal Iyengar and in execution attached 32 items of properties belonging to him on 25-3-1958. Since the properties were not sold, the execution petition was dismissed on 22-12-1958 and the attachment was ordered to continue for three months. The defendant, an assignee decree-holder in S. C. 131 of 1957. brought 39 items of properties belonging to Rajagopala Iyengar to sale in E. P. 21 of 1958. attached them on 3-2-1958 and purchased on 28-1-1959. 20 out of those 39 items. He set off the purchase price against the decree amount and full satisfaction of his decree was entered and the attachment in respect of the remaining 19 items was raised and the sale was confirmed on 10-3-1959. The plaintiff then filed E. P. 217 of 1959 on 19-3-1959 and applied for attachment of the properties purchased by the defendant along with some other items. The defendant filed a claim petition and that was allowed. Thereafter the plaintiff brought the rest of the properties to sale and as there were no bidders, the execution petition was closed Thereafter the plaintiff filed E. A. 814 of 1959 in defendant's execution petition praying for a rateable distribution from out of the assets realised by the defendant by the sale of 20 items already referred to. That petition was dismissed and the plaintiff was directed to seek his redress, if so advised in a suit under Section 73 (2), C. P. C. He then filed a suit, out of which this second appeal arises.

(2.) THE defendant's contention was that the plaintiff filed the suit in collusion with his judgment-debtor, who was his cousin, that he had knowledge of the execution petition filed by the defendant and is, therefore, not entitled to any remedy, and that in any case as his claim petition was allowed, the plaintiff had no right of suit under Section 73 (2 ). C. P. Code. The trial court decreed the plaintiffs suit, but the lower appellate court has reversed the judgment of the trial court and dismissed the plaintiff's suit. The lower appellate court has held that the plaintiff has no right of suit under Section 73 (2) C P. Code and that such a suit would lie only when the assets which are liable to be rateably distributed are taken away by a person not entitled to receive those assets and that the defendant, a rival decree-holder, cannot fall under that category because as a decree-holder, he was entitled to receive the assets as of right. On this point, the lower appellate court is clearly wrong and the learned advocate for the respondent does not seek to support the judgment of the lower appellate court on that ground.

(3.) THE lower appellate court also took the view that the suit is the result of a collusion between the plaintiff and his judgment-debtor and. therefore, he is not entitled to any relief. There is no evidence of any collusion between the plaintiff and his judgment-debtor. It is true that he had received some moneys from the judgment-debtor out of court. But he had also brought the judgment-debtor's properties to sale once in E. P. 174 of 1958 and that execution petition was dismissed after the properties were brought to sale on two occasions only because there were no bidders. Even subsequently, he filed another execution petition, attached all the properties of the judgment-debtor and after the present defendant's claim petition was allowed, pursued his remedy against the other properties of the judgment-debtor and brought them to sale on 13-9-1959. That execution petition was closed only because there were no bidders on that day. It is not necessary in order to enable a decree-holder to claim a rateable distribution of the assets realised in execution by another decree-holder against the common judgment-debtor that he should pursue to the bitter end his remedies against the judgment-debtor's other assets before he can claim a rateable distribution from the rival decree-holder. Even if a decree-holder has realised a part of his decree amount before the rival decree-holder has filed his execution petition and realised some assets he is entitled to claim rateable distribution from the rival decree-holder in respect of the balance of the decree amount due to him. Therefore, the fact that the plaintiff had already received some amounts from his judgmenl-debtor out of court does not disentitle him to claim rateable distribution of the assets realised by the defendant Even after getting a rateable distribution of the assets realised by the rival decree-holder, it is open to the plaintiff to pursue his remedies against the other properties of the judgment- debtor in respect of the balance that may be due to him. It is not therefore, correct to say that just because the plain-jiff's E. P. 217 of 1959 was closed on 13-9-1959 for want of bidders, he is not entitled to any rateable distribution from out of the assets realised by the defendant; nor would the fact that he had knowledge of the filing of the execution petition by the defendant, disentitle the plaintiff to his remedy. That point is wholly irrelevant to the decision of the question of the plaintiff's rights. Therefore, the lower appellate court is not right in thinking that because the plaintiff professed ignorance about the other properties owned by his judgment-debtor or because the defendant stated that the judgment-debtor owns a house not only in the village, but also a house worth Rs. 6000 at Pudukottai, and that he also owns other landed properties that would disentitle the plaintiff to a rateable distribution. The requirements of Section 73, C. P. Code are clearly satisfied in this case- When the defendant was executing his decree and realising his amount, the execution petition of the plaintiff was pending and therefore, he is entitled to a rateable distribution. The possession of other items of properties by the judgment-debtor is wholly irrelevant to the question of the plaintiff's bona fides.