RAMANATH PANDA Vs. DAMODAR SAHU

JUDGEMENT

(1.) THE facts giving rise to this revision may be briefly stated as follows:

(2.) ORIGINAL Suit no. 23 of 1943 on the file of the Subordinate Judge, Berhampur, was a partition suit between the members of a joint family owning extensive properties in which were included the Aska Sugar Works and Distillery also the Saw Mills at Russelkonda. One of the parties in the suit was appointed as the receiver of the family properties in the partition suit. A number of creditors of the family had obtained decrees against them and at the relevant date, there were as many as 12 decrees obtained by the creditors against the members of the family and pending execution.

(3.) THE two items of properties, that is the sugar factory and the saw mill appear to have been sold and out of the purchase -money of six lakhs, two lakhs have been deposited in the Court by the purchaser. Meanwhile, it would appear that one Bhabani Saukar Sen, who had brought a suit against the members of the judgment, debtors' family in the original side of the Calcutta High Court, filed an application to implead the receiver as a party in his suit and appears also to have obtained an order that the sale -proceeds of the Aska sugar factory and the distillery were not to be distributed to any of the creditors until further orders of the Court. It is now stated to us that that order has been finally vacated and if that be so, it would appear that none of the parties will ultimately have a grievance by the order now sought to be revised, because there appears to be enough money in Court to satisfy all. But as the parties are not quite clear whether the vacating of that order completely safeguards that right, we have been invited to go into the question raised in this revision petition and it is accordingly necessary to do so. In the total sale price of six lakhs, two lakhs was for the saw mill and four lakhs for the sugar factory. Accordingly out of the two lakhs of the sale -price deposited into the Court the learned Judge treated 1/3rd thereof as being available towards the sale -price of the saw mill and the balance 2/3rds towards that of the Aska Sugar Factory and Distillery. This 2/3rds could not be distributed by virtue of the order of the High Court staying his hands in respect of the distribution regarding the sale -proceeds of the Aaka Sugar Factory as already stated. As regards the 1/3rd of two laks available in respect of the Russelkonda saw mill, he has made an order distributing that amount as between the eight decree, holders who have made attachments of the saw mill. The petitioner, who did not attach the saw mill but attached only the sugar factory claimed before the Subordinate Judge that he was also entitled to rateable distribution along with others out of that amount. But the learned Subordinate Judge has overruled his contention treating the 1/3rd amount of two lakhs as funds ear -marked for distribution only as between such of the decree -holders who had attached the saw mill. It is this order that is now sought to be revised, by the decree -holder who had obtained his decree in O.S. No. 45 of 1939 and who has admittedly made his application to the Court for execution before the sale -proceeds came into the hands of the Court.