VARADA RAMASWAMI Vs. VUMMA VENKATARATNAM

JUDGEMENT

(1.) The respondent in this case obtained a decree against a certain judgment debtor Mothivala Usman in O.S. No. 776 of 1916 on the file of the Ellore District Munsif. In execution he attached certain monies belonging to the Judgment-debtor. Various other decree holders who are appellants now before us applied for and obtained rateable distribution under Section 73 of the Civil P. C.. The money was distributed. On appeal the order for rateable distribution was set aside by the Court. The respondent then applied for the return of the money which had been paid to the other decree holders and this was ordered by the District Munsif, the order being confirmed on appeal by the Subordinate Judge. The matter now comes up before us on second appeal.

(2.) The lower courts purported to have directed the return of the money under Section 144 C.P.C. though the Subordinate Judge in his Judgment also refers to Section 151. It is represented on behalf of the appellants that Section 144, has no application to the present case on the ground that the order for rateable distribution cannot be treated as a decree within the meaning of Section 144, C.P.C. Referring to the definition of decree in Section 2 of the Code, it is clear that the order for rateable distribution can only be so treated if it is to be considered as an order under Section 47, In the present case the order was passed on contest between rival decree holders. No objection to the rateable distribution was raised by the Judgment debtor nor is it suggested that his interests were directly or indirectly affected.

(3.) We are referred to Rajah of Karvctnagar V/s. Venkata Reddi (1915) I.L.R. 39 Mad. 570 : 29 M.L.J. 96, by respondent's vakil as showing that an order for rateable distribution may be treated as an order under Section 47. But that was a case in which the order was passed on an objection raised by the Judgment debtor to the effect that a particular decree holder was not entitled to participate because he had no subsisting application for execution pending. The learned Judges are at pains to distinguish between such a case and the case where the contest was between rival decree holders and to say that such a case as the latter was not governed by Section 47, C.P.C. They refer to Balmer Lawrie and Co. V/s. Jadunath Banerjee (1914) I.L.R. 42 Cal. 1, as authority to this effect. In our opinion the distinction is sound and the order for rateable distribution in this case cannot be regarded as an order under Section 47 or as a decree within the purview of Section 144. Viewed therefore as an order under Section 144, the order under appeal was without jurisdiction and must be set aside.