SUNIL ROY Vs. BISWANATH DUTTA

JUDGEMENT

(1.) This Rule is directed against an order refusing an application for rateable distribution. The petitioner got a decree for Rs. 6,890/6/3 against Phani Bhusan Singh on 15-9-1953 in Suit No. 3414 of 1951 on the Original Side of this Court. He started execution proceedings in the Court of the Subordinate Judge, Alipore, on 19-9-1953, after having obtained a certificate of non-satisfaction from this Court in Ex. Case No. 19 of 1953. In the application for execution he prayed for attachment and sale of the moveable property described in these words:

(2.) In the meantime Biswanath Dutt obtained his decree in Suit No. 17 of 1953 on the Original Side of this Court against the same Phanibhusan Singh. This was on the 18-6-1953. He started execution proceedings for the same on 11-8-1953 and asked for attachment of the same motor car under Order 21, Rule 46, Civil P. C. and sale of the same thereafter. Attachment in this case was effected on 18-8-1953. The motor car was sold on 28-9-1953. On 25-9-1953, the present petitioner Sunil Roy made his application "under Section 73 read with Section 63, Civil P. C." for rateable distribution of the sale proceeds.

(3.) In the execution case No. 19 of 1953 an application under Section 47. Civil P. C. was made by the judgment-debtor on the ground that there was no valid attachment as, though the motor car was in the possession of a third person G. McKenzie & Co. Ltd., no action Was taken under Order 21, Rule 46, Civil P. C. In disposing of the application under Section 47 the executing Court stated that the contention that attachment was invalid was accented by the decree-holder's Advocate and passed the following order: