RAJANI KANTA SUTRADHAR Vs. SURENDRA MOHAN RAY

JUDGEMENT

(1.) The circumstances of this case are that the petitioner obtained a money decree against the judgment-debtor and executed it in the. Court of the Fourth Munsif at Habiganj who had jurisdiction to try suits up to the value of Rs. 1,000. Opposite parties 1 and 2 also got money decrees against the same judgment debtor in the Court of the Third Munsif at Habiganj who had jurisdiction up to Rs. 2,000 and in whose Court the suits brought by the opposite parties lay. The petitioner took out execution of his decree in Execution Case No. 106 of 1929 of the Fourth Munsifs Court and some properties of the judgment-debtor were sold on 9 August 1929. One lot was purchased by a stranger for Rs. 500 and that amount was put in. The petitioner as decree-holder purchased two other lots for Rs. 600. On the day of the sale only the poundage fee of Rs. 12-8-0 was accepted from the petitioner. This was done at the request of the petitioner to accept only the poundage fee and allow him to set off the purchase money against his decree, but no formal order was passed to that effect. On 6 September opposite party 1 applied to the Fourth Munsif to order the petitioner to deposit the amount for which he had purchased the property, i.e., Rs. 600 in the Court for rateable distribution. On 7 September the petitioner filed an objection to the application by opposite party 1 and applied for setting off the sale proceeds against his claim. The Fourth Munsif thereupon passed the following order: Decree-holder files a petition for setting off the sale proceeds from claim. Let all the petitions be put up before the pleader.

(2.) Before the matter could be heard the District Judge ordered the Fourth Munsif to transfer the assets held by him to the Court of the Third Munsif for rateable distribution. No formal order was passed on the petitioner's above petition. It appears that before the sale of the judgment debtor's properties opposite party 1 had applied on 25 July for rateable distribution with the petitioner, the decree-holder in Execution Case No. 106 of the Fourth Munsif's Court. The order passed thereupon was "call for the record from the fourth Court after stay in that Court." We have observed that under the orders of the District Judge the assets were sent from the Court of the fourth Munsif to that of the Third Mnnsif. The assets held by the Fourth Munsif at that time were Rs. 500 in cash which was sent to the Third Munsif. The opposite party thereupon applied to the Munsif, Third Court, claiming rateable payment to them out of the sale proceeds i.e., Rs. 600 for which the petitioner had purchased the property from the judgment-debtor. The petitioner objected. That objection was overruled by the Munsif, Third Court, who held that the entire purchase money for which the properties were sold in Execution Case No. 106 of the Fourth Munsif's Court should be taken into account for distribution of assets among all the decree-holders although the Fourth Munsif might have ordered a set off against the petitioner's decree. This rule was obtained against this order and it is argued that the Fourth Munsif having allowed a set-off of the amount for which the petitioner had purchased the judgment-debtor's properties it could not be regarded as an asset in the hands of the execution Court and therefore could not be called upon for rateable distribution.

(3.) It is further contended that even though the order of the Fourth Munsif was bad, the Third Munsif had no jurisdiction to go behind that order. The case raises a point of nicety but on giving our consideration to it we think that it can be answered by referring to the particular circumstances of this case. No formal order was passed by the Fourth Munsif allowing a set off though it may be implied that by accepting only the poundage fee he agreed to the set off claimed. If the order of acceptance of the poundage fee by the Fourth Munriif is read in that light then that order must be treated as an order under Order 21, Rule 72, Clause (2), Civil P.C., which entitles the Court to permit the purchase money and the amount due on the decree to be set off against each other. But it can only be passed subject to the provisions of Section 73 which relates to the distribution amongst decree-holders. This qualification of the power of the Court is very important. Whenever a decree-holder applies for a rateable distribution under Section 73, the Court is not competent be pass an order under Order 21, Rule 72(2). In this case it appears that opposite party 1 had applied for rateable distribution though not before the set-off was allowed in the Court that held the assets but in the Court which passed, the decree in his suit; and that Court communicated the fact to the execution Court. which held the assets. In our opinion the purchase-money for which the property was purchased by the petitioner must be regarded as assets realized by the executing Court. It is true that no money was pub in by the purchaser. into the Court according to the view taken in the case of Sorabji Edulji Warden V/s. Govind Ramji [1891] 16 Bom. 91, it should be taken as part of the assets realized by the executing Court in execution of the decree. That decision was passed even before the words "subject to the provisions of Section 73" were introduced into Order 21, Rule 72, Clause (2).