KATIKALA SUBBAYYAMMA Vs. PENMETSA BANGARRAJU

JUDGEMENT

(1.) The question that arises for consideration in this case is one under Section 73 Civil P. C. The petitioner is the decree-holder in Small Cause Suit No. 68/56 on the file of the Subordinate Judges Court, Narsapur. The respondents 1 and 2 are the legal representatives of one Penmetcha Subbaraju, who obtained a decree in Small Cause Suit No. 92/58 on the file of the Court of the Subordinate Judge, Narsapur against the same judgment-debtors. The petitioner in this revision petition got transferred his decree in Small Cause Suit No. 68/56 to the original side of the same Court and got attached some immoveable property belonging to the judgment-debtors and brought it to sale and the sale amount was realised by that Court on its original side on 28-11-57. Meanwhile, that is on 25-11-57, the decree-holder in Small Cause Suit No. 92/56 filed E. A. No. 768/ 57 for transfer of the decree to the original side of the same court. Along with this, he filed another E- P. 203/57 in the Subordinate Judges Court on the same day under Order 21, Rule 43 and Section 73 of the C.P.C. praying to grant rateable distribution of .the assets realised in execution of the decree in Small Cause Suit No. 68/56 and to attach the moveables of the judgment-debtor. E. A. 768/57 for transfer of the decree in Small Cause Suit No. 92/56 to the original side of the Sub-Court, Narsapur was ordered only on 18-1-58. The objection taken by the decree-holder in Small Cause Suit No. 68/58 to the claim of the respondents for rateable, distribution is that the decree-holder in S.C.S. No. 92/56 has not applied for execution of his decree to the Subordinate Judges Court, Narsapur on its original side. This objection was overruled by the lower court and it was held that the decree-holder in S.C.S. 92/56 is entitled to rateable distribution under Section 73 from out of the amount realised in execution of the decree obtained by the petitioner. Hence, the decree-holder in S.C.S. No. 68/56 filed the above revision petition.

(2.) It is contended by Sri Narasimham, learned counsel for the petitioner that in order that the respondents be entitled to claim rateable distribution under Section 73 C.P.C. they must have applied for execution to the Court on the original side before the assets are realised. In this case, the decree in S.C.S. No. 68/56" was not transferred to the original side of the Subordinate Judges Court, Narsapur before the receipt of the assets and therefore E. P. No. 203/57 for rateable distribution and for attachment of moveables was not maintainable. He relied upon a decision of Happell J. in Srinivasa Mudaliar v. Ramudu Naidu, 1943-1 Mad LJ 57: (AIR 1943 Mad 262) which followed an earlier decision in Chella Narasiah v. Sontan Obbayya, 25 Mad LJ 601.

(3.) The relevant portion of Section 73, Clause (1) C.P.C. is as follows: