SARASWATIBAI Vs. GOVINDRAO KESHAVRAO MAHAJAN

JUDGEMENT

(1.) This revision has come up before us in pursuance of the following order of Bhutt, C. J. :

(2.) The facts of the case giving rise to the question, which necessitated a reference to a Full Bench, may be briefly stated. In Execution Case No. 435 of 1955 pending in the Court of the First Civil Judge, Burhanpur, a house of the judgment-debtor was attached and put to sale. The auction-purchaser paid the price on 20th August 1957. Before that date, three other execution applications against the same judgment-debtor were made in that Court. In two of these cases, (No. 14 of 1955 and No. 438 of 1955), there is a prayer only for rateable distribution of the assets held in Execution Case No. 435 of 1955. In the third case (No. 2070 of 1955), the relief claimed is attachment of immoveable property of the judgment-debtor and rateable distribution of the assets held in Execution Case No. 435 of 1955. Pursuant to the provisions of Section 63 of the Code of Civil Procedure, the sale proceeds and the four execution cases were transferred to the Court of the Additional District Judge, Khandwa, where another execution application against the same judgment- debtor was also pending. Reiving upon 25 Nag LR 94: (AIR 1929 Nag 148), the "Additional District Judge held that the applications in Execution Cases Nos. 14, 436 and 2070 of 1955 were not valid applications for execution and could not furnish any basis for rateable distribution of assets under Section 73 of the Code.

(3.) On a question, which did not arise out of the facts of 25 Nag LR 94: (AIR 1929 Nag 148) (cit. sup.) but which was specifically referred to a Division Bench, it was held that a creditor claiming rateable distribution on the strength of a money decree must himself ask for attachment and safe of the property or for execution of his decree by one of the modes, not including rateable distribution, specified in Order 21. Rule 11(2)(j) of the C. P. C.