RAJLAKSHMI DASSI Vs. BONOMALI SEN

JUDGEMENT

(1.) A suit instituted by Bholanath Sen and Tulsimanjari Dassi in forma pauperis having been dismissed with costs, they were, under the decree, made liable to Government to pay the sum of Rs. 2484-12-0 on account of costs of court-fees and the sum of Rs. 1115-9-6 to the defendant Rajlakshmi Dassi. Rajlakshmi Dassi applied for execution of this amount together with costs of execution on 13-11-1943 in Title Execution Case No. 41 of 1943. The Government of West Bengal had applied for execution against Bholanath and Tulsimanjari in the Execution Case No. 25 of 1942 and got four Government Promissory Notes attached. After some vicissitudes, with which we are no longer concerned, the position in the beginning of January 1952 was that in the execution case commenced by the present petitioner the legal representatives of Bholanath and Tulsimanjari, who had died on 20/9/1947 and 8/11/1948 respectively had been substituted in their place. No such substitution had, however, been made in the execution case started by the Government of West Bengal. An application for substitution of the heirs of Bholanath Son was indeed made on behalf of Government on 10-1-1952, but it was rejected. In July, 1952 the sale proceeds of two Government Promissory Notes, which had been the property of Bholanath Sen, amounting to Rs. 1869-12-6, were sent by the High Court to the Subordinate Judge's Court. Thereafter on 12/9/1952 Rajlakshmi applied for payment to her the sum of Rs. 1128-12-3 out of that amount. Before passing any order on this application, the learned Judge directed notice of the application to be served on the Government Pleader. Thereafter on 22-12-1952 the Government of West Bengal made an application for rateable distribution, according to the dues of both the decree-holders, in Title Execution Case No. 41 of 1943 and Title Execution Case No. 35 of 1942. The Court has allowed the prayer and has directed a sum of Rs. 566-4-0 to be credited to the petitioner's decree.

(2.) It is urged on behalf of the petitioner Rajlakshmi before us that the learned Subordinate Judge acted without jurisdiction in allowing the application for rateable distribution; firstly, because the application of rateable distribution was filed on 22/12/1952--long after the assets had been received by the Court, and secondly, because at the time the assets were received by the Court or when the Court passed the order, there was no valid or subsisting application for execution.

(3.) In my judgment, there is no substance in the first contention. The statute does not, in my opinion, require that an application for rateable distribution as distinct from an application for execution should be filed before the assets were received. Indeed, it is not necessary at all that any specific application asking for rateable distribution should be filed. If there are more than one application for execution pending, it becomes the duty of the Court to make an order for rateable distribution as soon as it becomes aware of the fact that there are assets in its custody of the same judgment-debtor in different execution cases. What is necessary is that the applications for execution must be filed before, the receipt of assets. Reference was made in this connection by Mr. Chatterjee to the case of -- 'Jogesh Prosad Choudhury v. Saligram Lachmi Narayan', 45 Cal WN 674 (A) where there is a headnote that "no application for rateable distribution under Section 73 (Civil P.C.) would lie after receipt of such a cheque by the Court". On reading Mukherjea J.'s judgment, however, it is abundantly clear that what the Court was considering in that case was whether the application for execution had been presented before the assets were received, and the main question before the Court was whether the Court could be said to have received the assets till the cheque was actually cashed and converted into money. The headnote is slightly misleading, but there remains no doubt when the judgment is read that their Lordships were not thinking of any separate application for rateable distribution when there was a previous application for execution before the assets had been received. The same remarks apply, I think, to another case -- 'V. Ramayya v. S. Namayya', AIR 1943 Mad 165 (B) where also there is an observation that application for rateable distribution cannot be made after the assets are received. It is clear, however, from the judgment that their Lordships were not thinking of a separate application for rateable distribution apart from the application for execution.