SURENDRA MOHAN SINHA Vs. KARTICK CHANDRA SEN

JUDGEMENT

(1.) The petitioner before us applied for rateable distribution under Section 73, Civil Procedure Code. That was disallowed and thereupon the petitioner obtained this Rule.

(2.) It appears that the opposite-party obtained a decree against the judgment debtor and in execution of that decree in the Court of the Subordinate Judge of Nadia, certain properties were sold. One of the properties was purchased by the decree holder for Rs. 3,600 and a third party purchased another property. The sale took place on the 22 November, 1920. The decree holder applied for and obtained permission to bid at the sale. He then applied that the purchase--money and the amount due under the decree might be set off against one another under the provisions of Order XXI, Rule 72. The Court ordered that the matter would be taken up on the 9 December. On the 30 November the petitioner informed the Court of the Subordinate Judge of Nadia that he had applied for execution of the decree (obtained by him against the judgment debtor) before the District Judge of Nadia, and had also prayed for rateable distribution. He asked the Court not to grant the prayer for a setoff made by the decree-holder but to direct the latter to deposit the money in cash, He further represented that the District Judge had directed the Subordinate Judge to send the money to the Court of the former for rateable distribution. This, however, was not the fast.

(3.) A notice was served upon the decree-holder to show cause why he should not deposit the money in cash. The third party auction purchaser deposited the balance of the purchase- money in respect of the property purchased by him in Court. On the 18 December 1920, the Subordinate Judge considered the question of set-off and was of opinion that it was not necessary for the decree-holder to deposit the money in cash, and the matter was accordingly adjourned till the 4 January for confirmation of the sale. In the meantime, the execution case then pending before the District Judge was transferred, upon the application of the petitioner, to the Court of the Subordinate Judge, and on the 4 January the petitioner made an application for the first time before the Subordinate Judge for rateable distribution. The question for consideration in the Court below was whether the assets had been realised before the application for rateable distribution was made, i.e., before the 4 January 1(sic)21. The Court below answered the question in the affirmative. That also is the question raised before us.