VIJAYRAJ AND HEMRAJ Vs. LALCHAND AND NARSINGHDAS

JUDGEMENT

(1.) THIS is a defendants' second appeal directed against the judgment and decree of the District Judge Jodhpur, dated the 9th July,, 1962, in a suit for recovery of money under sec. 73 of the Code of Civil Procedure.

(2.) THE facts which give rise to the present controversy are practically undisputed. THEy are that Moolraj and his sons Vijayraj and Hemraj obtained a decree in suit No. 69 of 1951 for a sum of Rs. 6223/- and odd on 16th December, 1956 against Narsinghdas. During the pendency of the suit the plaintiff had obtained an attachment before judgment and the petrol pump belonging to Narsinghdas was attached. Narsinghdas offered Kanhaiyalal as a surety for the payment of decretal amount. On 9th July, 1951 Kanhaiyalal executed a surety bond Ex. 4 in favour of the Court which had issued the order of attachment before judgment and consequently the property attached was released. On the same date Narsinghdas sold the petrol pump and deposited a sum of Rs. 5300/- with Kanhaiyalal presumably to cover up the risk which Kanhaiyalal had undertaken as his surety. On 16th December, 1956 a decree in the sum of Rs. 6223/- inclusive of interest and costs was passed against Narsinghdas. Meanwhile Kanhaiyalal had died. His son Atmaram represented him. Moolraj and his sons Vijayraj and Hemraj sought execution of the decree against Narsinghdas and Atmaram. Atmaram deposited a sum of Rs. 6223/-on 15th July, 1957. Against Narsinghdas there was another money decree and the decree-holder Lalchand filed an application for execution of the said decree on 4th May, 1957 and claimed rateable distribution from the amount of Rs. 6223/-deposited by Atmaram. THE application for rateable distribution was rejected by the executing court and the amount deposited by Atmaram was paid in its entirety to Vijayraj and Hemraj. Under the provisions of sec. 73 (2) of the Code of Civil Procedure Lalchand instituted a suit in the Court of the Civil Judge on the ground that the money deposited by Atmaram actually belonged to Narsinghdas and it being the judgment debtor's property Lalchand was entitled to a rateable distribution. A sum of Rs. 2451/1/- was claimed by way of rateable distribution. THE trial Court dismissed the suit. Lalchand preferred an appeal before the District Judge, who reversed the finding of the trial Court and held that Lalchand was entitled to rateable distribution. Vijayraj and Hemraj, Moolraj having already died, have now come up in second appeal.