ARIMUTHU CHETTY Vs. VAYAPURI PANDARAM

JUDGEMENT

(1.) The petitioner is the decree-holder in O.S. No. 87 of 1908 on the file of the Principal District Munsif of Salem. Property of the judgment-debtors was attached in execution of another decree-against them in O.S. No. 35 of 1906 on the file of the District Court of Salem. It was sold by the District Court in execution of that decree. The purchaser made the deposit on the 17 September 1909 and the balance of the purchase-money was paid into court on the 29 September 1909. It must be taken, having regard to the decision in Ramanathan Chettyar V/s. Subramania Sastrial (1903) I.L.R. 26 M. 179, that the assets were realized only on the 29 of September 1909 within the meaning of Section 295 of the old code. There is no doubt a change in the corresponding provision of Section 73 of the present code. But so far as the question before me is concerned the change in the language is immaterial. The purchase- money becomes the asset of the judgment-debtor only when the balance is received and not when the deposit is made. I am bound to hold, on the authority of Muthalagtri V/s. Muthayan (1883) I.L.R. 6 M. 357 that an application to the District Court before the receipt of assets for executions is an essential pre-requisite of a general claim to rateable distribution. The District Judge seems to have assumed that, although an application was made apparently before the time when the assets were received, the petitioner had no right to make the application before the Munsif's decree was received by the District Court under the latter's order of transfer. It is true that the decree was only received by the District Court on the 30 of September. It appears to me that this does not preclude the petitioner's claim to rateable distribution, if he had attached the same property in execution of the Munsif's decree. If the property had been attached in execution of the decree of the District Court, the court which should realise the property was the District Court under Section 63. That section provides "the court which shall receive or realise such property fund shall determine any claim thereto and any objection to the attachment thereof shall be the court of highest grade." Supposing such a realisation is made by the higher court, there can be no need for a transfer of the decree of the lower court to the higher to entitle the decree-holder of the lower court, who has also attached the property realised, to share in the proceeds of such realisation It seems to me that the right to share in the proceeds realised by sale of attached property is independent of a transfer of the decree for execution to the higher court. Section 38, no doubt, provides that a decree may be executed by the court which passed it or by the court to which it is sent for execution. I am inclined to think that there is no other court which can execute a decree and that Section 38 is exhaustive. What the decree-holder of the Munsif's Court is entitled to, when there is no transfer of his decree to the District Court, is not a general execution of his decree by the District Court or rateable distribution in all the assets of the judgment-debtor received by the District Court, but only to share by virtue of his attachment in the proceeds of the attached property realized. To a relief so limited it appears to me to be not essential that the decree of the Munsif's Court should have been previously transferred to the District Court though this view runs counter to an observation in Muthalagiri V/s. Muthayan (1883) I.L.R. M. 357 as to the need of transfer. I do not feel bound by the case on this point though it is followed in Nimbaji Tulsiram V/s. Vadia Venkali (1892) I.L.R. 21 C. 200 at p. 203, as the absence of an application to the higher court was sufficient to sustain the decision. I prefer the reasoning of Sale J. in Clark V/s. Alexander (1894) I.L.R. 21 C. 200 at p. 203 to the extent at least of holding that a transfer of the decree was unnecessary to entitle the petitioner to rateable distribution in the sale proceeds of the attached property.

(2.) It was also argued that the transfer was complete when the order was made by the Munsif, and that the receipt of the decree by the District Court on the next day had nothing to do with the petitioner's right to apply to the District Court for rateable distribution on the 29th itself. The petitioner has put in an affidavit in which he says that the transfer was made by the Munsif first on the forenoon of the 29th; that he then applied to the District Court for execution, and that the assets were received thereafter. I am not at all sure, having regard to the provisions of Rules 6, 7 and 8 of Order XXI, that the court to which a decree is sent for execution is authorized to execute it before a copy of the decree is received; but I think there is force in the contention that, when once an order is made sending a decree to another court for execution, that by itself is sufficient to entitle the decree-holder to apply to the court to which the decree is sent for execution. In this view the application to the District Court, after the Munsif's order sending the decree to the District Court, would be perfectly competent to satisfy the requirements of Section 73. Although the Munsif's order, the application to the District Court and the payment of the balance of the sale proceeds into court were all on the same day, the last two were the acts of parties and the court is bound to ascertain the order in which they were done - Clarke V/s. Bradlaugh (1881) 7 Q.B.D. 38. I must ask the District Judge to return findings on the following points: 1. Was the property sold by the District Court in O.S. No. 35 of 1906, attached under the Munsif's decree in O.S. No. 87 of 1908, before realization? 2. Were the Munsif's order of transfer of the decree in O.S. No. 87 of 1908. and the petitioner's application to the District Court to execute it prior in point of time to the payment of the purchase-money into court on the 29 September 1909?

(3.) Eight weeks will be allowed for findings and one week for objections.