VENILAL RANGILDAS Vs. GANDABHAI BHAGWANDAS

JUDGEMENT

(1.) This revision application raises a question of rateable distribution under Section 73, Civil P. C., and although the facts are complicated, the necessary and essential facts for the determination of this question are very simple. The petitioner obtained a money decree against his judgment-debtor and in execution of that decree he attached under Order 21, Rule 52, a fund of Rs. 3,516 belonging to the judgment-debtor and lying deposited in the Court of the City Magistrate, Surat, This fund continued to remain in the City Magistrate's Court 'and was ultimately Bent to the executing Court in 1946. The opponent made an application for attachment under his decree prior to this fund being received by the executing Court in 1946, and the only question that I have to determine on this application is whether for the purposes of Section 73 it could be said that this fund was received by the executing Court when the attachment was levied on 24-1-1939, or whether the fund was received by the executing Court when the amount was actually transmitted to the executing Court in 1946. If the fund can be considered to have been received on 24-1-1939, then the opponent is not entitled to rateable distribution. If, on the other hand, it could be said, that the fund was only received in 1946, then the opponent is entitled to rateable distribution. The lower Court held that the opponent was entitled to rateable distribution, and it is from that order that this revision application is preferred.

(2.) Now, the effect of levying an attachment under Order 21, Rule 52, is to inform the Court or officer that the property attached must be held by the Court or officer subject to the further orders of the Court. The property attached continues to remain with the officer or the Court, and the property is not at the disposal of the executing Court. Further orders have to be made by the Court before the property is at the disposal of the executing Court and before the executing Court can make any orders with regard to the disposal of that property. Therefore, the only effect of the attachment under Order 21, Rule 52, is to prevent the Court or officer who holds the property of the judgment-debtor from dealing with that property. Apart from authority, it is clear that a mere attachment without more would not result in the property or the assets being received by the executing Court within the meaning of Section 73.

(3.) Mr. Walawalkar has relied on three authorities in support of his Submission that the attachment under Order 21, Rule 52 does amount to a receipt of assets for the purpose of Section 73. The first is Narsingh Das v. Gulab Rai, A.I.R. (22) 1935 pat. 201 (2). In that ease, the judgment-debtor had a sum of money in Court to his credit, There was an application for attachment of this money. Then there was another application at a later date and the later attaching creditor contended that as there was no book entry transferring the money to the credit of any execution he was entitled to rateable distribution under Section 73. This contention was rejected and it was held that the actual receipt took place when the moneys were attached by the Court. This case does not help Mr. Walawalkar because here the moneys were lying in the same Court, and as soon as the moneys were attached. It was naturally held that the moneys were received by the Court. There was no question here of money being received from any other Court or any other officer. Under these circumstances it is easy to understand the decision of the Patna High Court that the actual receipt took place by reason of the attachment. The other case relied upon is a decision of this Courb in Dattatraya v. Pundlik, 22 Bom. L.R. 1001. There the Court was considering the case of execution being transferred to the Collector under the Civil Procedure Code and the sale proceeds being realised by the Collector by sale of the property, and the Court held that the sale proceeds must be deemed to have been received when the Collector sells the property and realises the full sale proceeds. It is not necessary that the Collector should transfer the sale proceeds to the executing Court. I fail to see what analogy there is between that ease and the case before me. As Sir Norman 'Macleod C. J., points out at p. 1003 :