STATE OF UTTAR PRADESH Vs. KOTAK AND CO

JUDGEMENT

(1.) THIS petition in revision has been filed by the State and arises from an order dated 3-7-1969 passed by the Additional Civil Judge, Aligarh in the following circum stances.

(2.) M /s. Kotak and Co., opposite party No. 1 and M/s. Gannon Dunkerley and Co. Ltd., opposite party No. 2 obtained decrees in the sum of Rs. 16, 812/- and odd and Rs. 8198/- and odd against the firm Ramchand Spinning and Weaving Mills, Hathras, opposite party No. 3. Both the decree-holders put their decrees into execu tion. On 21-9-1962 opposite party No. 2 moved an application which purported to be under Section 73 (1) of the Code of Civil Procedure claiming rateable distribu tion of the assets of the judgment-debtor held by the Court. It may be mentioned here that in execution of their decree M/s. Kotak and Co., got the Mills buildings, machinery and other assets belonging to the judgment-debtor, opposite party No. 3 sold for Rs. 2, 45, 000/-. One-fourth of this sale amount was deposited in Court by the pur chaser and the remaining three-fourths was deposited subsequently i.e. between 24th and 25th September, 1952. On 22-9-1962 the Court allowed the application for rateable distribution by the following order: "Allowed rateable distribution as pray ed." On 15-7-1962 a letter had been received by the Court from the Sub-Divisional Officer, Hathras along with a warrant of attach ment stating that a sum of Rs. 1, 09, 536.35 P. was due to the State from the said judgment-debtor, opposite party No. 3, on ac count of sales tax, income-tax, Employees' State Insurance dues and Employees' Pro vident Fund. It was prayed that this amount may be ordered to be paid out of assets of the judgment-debtor held by the Court. This letter, it may be noted, was received before passing of the order of rateable distribution on 22-9-1962. Some further letters were received from the vari ous officers of the State after 22-9-1962 put ting out certain further claims of dues fas the State against the said judgment-debtor. The total of these claims put out for the State through the various letters received from 15-9-1962 to 29-8-1967 aggregated to a sum of Rs. 2, 58, 272.52 P. against M/s. Ramchand Spinning and Weaving Mills, Hathras, opposite party No. 3. The decree-holders filed lobjections resisting the claim of the State to priority on a number of grounds.

(3.) I have heard arguments of the Standing Counsel and Sri V. K. Gupta ap pearing for the judgment- debtor opposite party. After hearing arguments of the learned counsel I am of the opinion that this revision is entitled to succeed. Section 73 (1) of the Code of Civil Procedure is in these terms: