BULAKHIDAS KALURAM BATIYA Vs. MURLIDHAR CHANDANMAL

JUDGEMENT

(1.) THE agricultural estate of the judgment-debtors was sold through the Collector in Civil Suit No. 137 of 1932 and fetched Rs. 4784. The Collector realized the amount of the sale proceeds finally on 26th August 1936. Several decree-holders had applied for execution of their respective decrees in the Civil Court in which the assets were received some time before the receipt of the assets and their applications were pending on 26th August 1936 and the decrees were not satisfied. When the assets were received the Civil Court issued notices to all of them for rateable distribution under Section 73, Civil P.C., and rate-ably distributed the assets amongst those that were found entitled. Among these, the decree-holders in Civil Suit No. 66-B of 1935 also received their share. The only objection that was urged in the lower Court against the decree-holders in Civil Suit No. 66-B of 1935 sharing in the assets was that though their application was pending when the assets were received and they had not received any satisfaction, their application was dismissed in default some time before the Court actually distributed the assets and this dismissal disentitled them from claiming a share in the assets. The trial Court held that this objection was not tenable and granted them their share. As against this order only the decree-holders in Civil Suit No. 85 of 1932, out of the several decree-holders of the seven different decrees who shared in the distribution have filed this application for revision.

(2.) IN the application for revision filed in this Court several objections were raised, but the counsel for the applicant eventually restricted his arguments to two points only and gave up the rest. The two points that are urged before me are: (1) that as the application of the non-applicants was not pending when the Court proceeded to distribute the assets, their claim should not have been considered, and (2) that there were two decree-holders in Civil Suit No. 66-B of 1935, viz. Chandanmal and Bansilal, but along with the application for execution which was filed by Chandanmal, and one Pukhraj, there was an application stating that by reason of a partition Bansilal had ceased to have an interest in the decree and that the decree was allotted to the share of Chandanmal and Pukhraj at a family partition and they alone were entitled to execute the decree. This statement was not accepted by Bansilal and the point was not decided when the application was dismissed in default after the assets were received. On these facts, it is argued that the application for execution was really by one of the two decree-holders in the decree and it was not in the interest of both the decree-holders under Order 21, Rule 15, but to the exclusion of one of them and as such the Court was wrong in granting distribution to the full extent of this decree. Of the two points that were argued before me only one, viz. the first, was taken up in the Court below and has been referred to in the order of that Court. The second point was neither raised nor dealt with in the order. The first contention is against the wording and spirit of Section 73, Clause (1), Civil P.C., which runs as under: 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 decrees for the payment of money passed against the same judgment-debtor and have not obtained satisfaction thereof, the assets, after deducting the costs of realization, shall be rateably distributed among all such persons.

(3.) THE second contention was not raised in the Court below and it is not the practice to interfere in revision on a point not taken in the Court below. Moreover, the point raised is one which really concerns the decree-holders of the decree in Civil Suit No. 66-B of 1935. The execution of the said decree was asked for in its entirety by persons who claimed to be the sole decree-holders. Though the name of Bansilal appeared in the decree, it was made clear in the execution application that he had ceased to have an interest in the execution of the decree by reason of partition, and though this statement was not then accepted by Bansilal and the execution application was dismissed in default without the determination of this point, Bansilal did not raise any contention when the amount rateably payable to the decree-holders of the decree in Civil Suit No. 66-B of 1935 was determined and paid to Chandanmal and Pukhraj. In this application for revision before me also, though. Bansilal is noticed, he did not care to put in an appearance and claim a share from Chandanmal and Pukhraj. This clearly indicates that the dispute if any is long settled and Chandanmal and Pukhraj alone were the persons entitled to execute the decree in Civil Suit No. 66-B of 1935. The application for execution as filed by them was thus proper. This contention also has no. force and I overrule it. Though I have dealt fully with the contentions raised in this revision and have come to the conclusion that they have no substance, I could have as well declined to go into them on the short ground that the applicant has a remedy of a suit given to him by Section 73, Clause (2), Civil P.C., and therefore no interference in revision was called for, and that it was not shown to me that this was a case of such a violation of jurisdiction that interference was called for. The application for revision fails and is dismissed with costs. Counsel's fee Rs. 25.