NAVAJ BHAVDU PATIL Vs. TOTARAM GOVIND PATIL

JUDGEMENT

(1.) This is second appeal from the order of the District Judge confirming the order of the First Class Subordinate Judge directing rateable distribution under Section 73 of the Civil Procedure Code. [After stating the above-mentioned facts his Lordship proceeded: ]

(2.) In second appeal it is contended, first, that Section 73 of the Civil Procedure Code does not apply to the facts of the present case as no assets were held by the Court and there was only a notional receipt of the purchase-money by the Court Further, it is contended that the decree-holders in darkhasts Nos. 67, 68 and 69 did not apply before the Court passed the order giving the appellant leave to bid and allowing the purchase-money to be set off against the decretal amount. Lastly, it is urged that the sale should be set aside and a re-sale should be ordered.

(3.) The preliminary question arising in the appeal is whether the order passed by the learned Subordinate Judge was an order passed under Section 47 of the Civil Procedure Code, and whether an appeal to the lower Court and a second appeal to this Court were competent, An order under Section 73 determining a question of rateable distribution as between rival decree-holders in which the judgment-debtor has no interest does not fall within the purview of Section 47 of the Civil Procedure Code and no appeal and second appeal would lie from such an order. See Balmer Lawrie & Co. V. Jadunath Banerjee (1914) I.L.R. 42 Cal. 1. If, however, the question determined under Section 73 of the Civil Procedure Code arises not only between the rival decree-holders but also between the judgment-debtor on the one hand and the decree-holders on the other, the order would be within the purview of Section 47 and would be appealable. See Sorabji Coovarji V/s. Kala Raghunath (1911) I.L.R. 36 Bom. 156, s.c. 13 Bom. L.R. 1193. The facts of the latter case are somewhat different. In that case the judgment-debtor paid certain money in satisfaction of the decrees, and the question arose as to the effect of such payment in putting an end to the attachment levied by the decree- holders, and as to whether other decree-holders were entitled to rateable distribution. The judgment-debtor who had made the payment in Court was interested in the decision on the point under Section 73 of the Civil Procedure Code. In the present case the sale was held on December 21, 1926, and the question whether the purchase-money should be rateably distributed between the appellant and the respondents does not in any way affect the judgment-debtor. We think, therefore, that the order passed by the learned Subordinate Judge in this case was not an order falling within Section 47 of the Civil Procedure Code, and neither an appeal to the District Court nor a second appeal to this Court is maintainable.