MOKA JAMBANNA Vs. KOPPARAM HONNAPPA

JUDGEMENT

(1.) The question in this revision is whether the lower Court was right in dismissing the application on the ground that the conditions laid down in section 73, Civil Procedure Code, have not been satisfied. Section 73, Civil Procedure Code, says :

(2.) The important condition, therefore, is that the party seeking rateable distribution should have filed an application for execution of the decree for the payment of money before the receipt of assets.

(3.) In the present case, the petitioner obtained a decree in Small Cause Suit No. 693 of 1949 and filed E.P. No. 250 of 1950 to execute that decree. In that execution application, he attached the properties of the judgment-debtor and subsequently the execution application was dismissed. The respondent obtained another decree in Small Cause Suit No.149 of 1950 against the same judgment-debtor and, in execution of that decree, brought the property to sale and the sale proceeds were deposited in Court on 20th January, 1953. The petitioner filed E.P. No. 53 of 1953 before the receipt of assets for rateable distribution. The learned District Munsif dismissed that application on the ground that the said application was not an execution application as contemplated by Order 21, rule 11, Civil Procedure Code and, therefore, the necessary condition laid down in section 73 was not complied with.