KRISHNA KUMAR GHOSE Vs. MAKHANLAL BANERJEE

JUDGEMENT

(1.) The petitioners in this Rule obtained two decrees for money in the Calcutta Small Cause Court against the judgment-debtors. They attached before judgment certain goods belonging to the judgment-debtors in the custody of certain navigation companies. Applications for execution of the decrees were made in the Naraingunj Munsif's Court for realising Rs. 1,449 and odd due under the two decrees, and sale proclamation was issued fixing the 7 October 1920 for the sale of the goods the Opposite parties bad also obtained a decree against the same judgment-debtors in the Calcutta Small Cause Court, and had attached the goods before judgment. Their attachment was prior to the attachment tinder one of the decrees obtained by the petitioners, but subsequent to the attachment under their other decree.

(2.) The opposite parties executed their decree in the Dacca Sub Judge's Court and got the sale fixed for the 7 October in the Munsif's Court (in execution of the petitioners decrees) Stayed. The petitioners thereupon asked the Subordinate Judge to direct the Munsif to held the sale and send the assets which might be realised to the Dacca Court for reteable distribution. The application was refused and the Dacca Court issued proclamation for sale fixing the 23 November for sale, which was postponed to the 6 December. On the 22nd November the petitioners submitted a petition to the Subordinate Judge of Dacca, in which they stated that under the low that Court had the power to execute decrees and determine claims, etc., in connection therewith, that the goods had been attached under Section 63 of the Code and that the petitioners were entitled to reteable distribution out of the assets. They prayed that the execution cases pending in the Naraingung Munsif's Court might be transferred to Dacca and that the assets which would be realised by the sale of the goods which had been first attached by them, might be retably distributed between them and the opposite parties. The Subordinate Judge thereupon made an order that "on the sale of the moveables ordered in this case let the records of the execution cases be called for reteable distribution as prayed for." The sale took place in the Dacca Court on the 8 and the Subordinate Judge by his order, dated the 11 December disallowed the prayer of the petitioners for reteable distribution.

(3.) The Subordinate Judge relied upon with case of Ramjash Agarwala V/s. Guru Charan Sen 3 Ind. Cas. 105 : 11 C.L.J. 69 : 14 C.W.N. 396 in holding that the petitioners were not entitled to reteable distribution as no application was made by them for execution in the Subordinate Judge's Court, Dacca, which realised the assets as laid down in Section 73 of the Civil Procedure Code.