BHOLA SAHU Vs. CHAMELI DEVI

JUDGEMENT

(1.) In this case the petitioner Bhola Sahu was executing a decree obtained against opposite party No. 2 Sital Sahu in execution case, No. 181 of 1956 in the Court of the 2nd Munsif of Darbhanga. It appears that opposite party No. 1 Srimati Chamoli Devi was also executing another decree against the same judgment-debtor in execution case No. 158 of 1956 in the Court of the 1st Munsif, Darbhanga. In the latter execution case the property was sold on the 19th of July, 1957, and the assets came into the hauds of that executing Court. The sale was confirmed on the 19th of September, 1957. On the 17th of August, 1957, the petitioner made an application in the Court of the 1st Munsif, Darbhanga, for rateable distribution of the assets under Section 73 of the Civil Procedure Code. Section 73(1) of the Civil Procedure Code reads as follows : "73. (1) Where assets are held by a Court and more persons than one have, before the receipt of such assets, made application to the Court for the execution of decrees for the payment of money passed against the same judgment-debtor and have not obtained satisfaction thereof, the assets, after deducting the costs of realization, shall be rateably distributed among all such persons;" Section 63, Civil Procedure Code, is to the following, effect :

(2.) The same principle was reiterated by the Allahabad High Court in Firm Chand Mal Rup Chand v. Gurdial Prasad, AIR 1939 All 159 where all the authorities on the point have been reviewed. This principle is also supported by a decision of the Nagpur High Court in Zumberlal Chhotelal v. Sitaram, AIR 1937 Nag 80 and a decision of the Hyderabad High Court in Commercial and Industrial Bank Ltd, v. Mir Sarfaraz Ali Khan, (S) AIR 1956 Hyd 65.

(3.) For these reasons we hold that the order of the learned Munsif, 1st Court, Darbhanga, dated the 3rd of January, 1958, dismissing the claim of the petitioner for rateable distribution is vitiated by error of law and must be set aside in exercise of our revisional jurisdiction. We accordingly allow this application and order, that the case should go back to the Munsif, 1st Court, Darbhanga, for being dealt with and determined in accordance with law.We accordingly allow this application. There will be no order as to costs as the opposite party has not appeared.