VIJAY RAJ Vs. LAL CHAND

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 Section 73 of the Code of Civil Procedure.

(2.) THE facts which give rise 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 Narsinghdar. 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 deposit -ed 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. 6228 inclusive of interest and costs was passed against Narsinghdas. Meanwhile Kanhaiyalai had died. His son Atma Ram represented him. Moolraj and his sons Vijayraj and Hemraj sought execution of the decree against Narsinghdas and Atma Ram. Atmaram deposited a sum of Rs. 6223 on 15th July, 1957. Against Narsiaghdas 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 entirely to Vijayraj and Hemraj. Under the provisions of Section 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. 2454 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.

(3.) MR . S. T. Porwal. learned counsel for the respondent No 2. the judgment -debtor Narsinghdas. contended that the amount was deposited for specific purpose and it was not available for rateable distribution.