HOTI LAL Vs. CHATURA PRASAD

JUDGEMENT

(1.) The question for consideration in the present appeal is as to what is the true interpretation of the words "decrees for the payment of money passed against the same judgment-debtor" in Section 73(1), Civil P.C., and on the answer to that question depends the fate of this appeal. The facts that have given rise to the question are undisputed and are as follows : Hoti Lal plaintiff-appellant obtained a simple money-decree (No. 59 of 1930) against one Bisham-bhar Sahai on the basis of a promissory note executed by Bishambhar Sahai. Bishambhar Sahai died after the passing of the decree and, then, his sons Navin Chandra and Abinash Chandra were brought upon the record as his legal representatives, and certain properties of Bishambhar Sahai were attached in execution of the decree. Makhan Lal, the ancestor of the contesting defendant-respondents, also held a promissory note executed by Bishambhar Sahai and Navin Chandra and, after the death of Bishambhar Sahai, he put that promissory note into suit implead-ing Navin Chandra and Abinash Chandra as defendants. Makhan Lai's suit was decreed and a decree (No. 620 of 1931) was passed in his favour against Navin Chandra personally and against the assets of Bishambhar Sahai in the hands of Navin Chandra and Abinash Chandra. Makhan Lal put his decree in execution and got some of the properties already attached by Hoti Lal sold. One of the items of the attached properties was sold and purchased by one Eeoti Prasad for Rs. 1325 and another item of the attached properties was sold and purchased by Makhan Lal himself for Rs. 1415. It appears that Makhan Lal took the sum of Rs. 1325 from Court on 26 October 1932, and filed a receipt for Rs. 1415 in respect of the property purchased by him on 29 March 1932.

(2.) Hoti Lal applied for rateable distribution of the two amounts, but the execution Court disallowed his application on 25 August 1934. Hoti Lal then brought the suit giving rise to the present appeal in accordance with the provisions of Section 73(2), Civil P.C. Both the Courts below dismissed the suit holding that, though the other requisites of Section 73(1) were satisfied, Hoti Lal was not entitled to a decree for rateable distribution as the two decrees, viz. decrees Nos. 59 of 1930 and 620 of 1931, were not "passed against the same judgment-debtor" within the meaning of Section 73, Civil P.C. By the present appeal the decisions of the Courts below are assailed and it is maintained that, in the circumstances of the present case, Hoti Lal was entitled to a rateable share out of the amounts fetched at the auction sale. The relevant portion of Section 73(1), Civil P.C., reads as follows: Where assets are held by a Court and more persons than one have, before the receipt of such assets, made application to the Court for the execution of the decrees for the payment of money passed against the same judgment-debtor and have not obtained satisfaction thareof, the assets, after deducting the costs of realization, shall be rateably distributed among all such persons.

(3.) Section 73(1) of the present Code corresponds to Section 295 of the Code of 1882 and the relevant portion of Section 295 was as follows: Wherever assets are realized by sale or otherwise in execution of a decree, and more persons than one have, prior to the realization, applied to the Court (by which such assets are held) for execution of decrees for money against the same judgment, debtor, and have not obtained satisfaction thereof, the assets, after deducting the costs of (the) realization, shall be divided rateably among all such persons.