RAMANATHAN CHETTIAR Vs. SUBRAMANIA SASTRIAL

JUDGEMENT

(1.) THIS is a petition against an order for rateable distribution made under Section 295, Code of Civil Procedure. For the sake of convenience, I will refer to the judgment-creditor at whose instance the land was sold in execution as. judgment-creditor No. 1 and to the judgment- creditor who made the application to the Subordinate Judge's Court, under Section 295 and who is the petitioner before this court as judgment-creditor No. 2. The land which was sold in execution at the instance of judgment-creditor No. 1 was sold in parcels, or in four items, and it would seem that these four items exhaust the whole land which was sold in execution of the decree in question. Now judgment-creditor No. II, put in his application under Section 295, C.P.C, before the proceeds of the sale of items 3 and 4 had been paid into court, and after the proceeds of the sale of items 1 and 2 had been paid into court; and in this state of things the Subordinate Judge held that as regards the proceeds of the sale of items Nos. 3 and 4, the petitioner was entitled to participate by way of rateable distribution together with judgment- creditor No. 1, but as regards the sale proceeds of (sic) Nos. 1 and 2, he held that he was not entitled to participate because his application was made after the sale proceeds of these two items had been paid into court. Now, in so holding I cannot help thinking-that he was wrong. The question of course turns upon the construction of Section 295, C.P.C. It seems to me that the word assets in Section 295 means the proceeds of the sale of the property which is sold in execution of the decree. As far as the present case is concerned, I am of opinion that the assets were realized when the whole of the proceeds were paid into court. At the time the petitioner-judgment-creditor No. II applied under Section 295, C. P. C, in my opinion, the assets had not been realised for the purposes of the section. Only a portion of the assets had been realised. It seems to me therefore that as regards items Nos. 1 and 2 as well as regards the proceeds of items Nos. 3 and 4, the application can fairly be said to have been made prior to the realization of the proceeds of the property, which was sold in execution of the decree. THIS appears to me to be a reasonable construction to place upon the words. It certainly does not do violence to the express terms of the section, and I do not read the judgment in Tiruchittambala Chetti V/s. Seshayyangar I.L.R. 4 M. 383 as precluding me from adopting this construction. I decide this case upon the facts which appear on the record or which were admitted in the course of the argument, and I propose not do to consider the general question of construction which was raised in Hafez Mahomed Ali Khan V/s. Damodar Pramanick I.L.R. 18 C. 242. It is not necessary for me to say whether I should be disposed to adopt the construction which the Calcutta High Court as a general question of construction placed upon the words "when ever assets are realized." In my judgment the petitioner is entitled to participate in the sale proceeds of items Nos. 1 and 2 as well as of items Nos. 3 and 4, and I think, the case, must go back to the Subordinate Judge with a direction that he must deal with it upon that footing. Now, it has been further argued on behalf of judgment-creditor No. 1 that the order made on the application of judgment-creditor No. 2 is bad in its entirety on the ground that the judgment-debtor of judgment-creditor No. 1 is not the same judgment-debtor of judgment-creditor No. 2 within the meaning of the words judgment debtor as they occur in Section 295, C.P.C. Now, it is proved or admitted that judgment-creditor No. 2's decree is against the father, and the judgment-creditor No. 1's decree is against the father and son, and it is admitted that the property from which the assets were realized by the sale, was the ancestral property of the family, of which the father and the son are undivided members and in that state of things the Subordinate Judge has held that the judgment-debters are the same for the purposes of Section 295 of the Code, and I think he was right in so holding. I do not say that this point is precisely covered by the decision of this court in Grant V/s. Subramaniam I.L.R. 22 M. 241 but that case certainly seems to me to go a long way towards establishing the contention which is relied upon on behalf of judgment-creditor No. 2, the petitioner in this case. Then, with regard to the Bombay cases, I think they can all be distinguished. As regards Nimbaji Tulsiram V/s. Vadia Venkati I.L.R. 16B 683 the property attached was not the ancestral property of the defendants in the two suits. In the present case it is the ancestral property. Then, again, in Govind Abaji Jakhadi V/s. Mohoniraj Vinayak Jakhadi I.L.R. 25 B. 494 there was one decree against the father and another against the son. Here we have a decree against the father and a decree against the father and the son. It seems to me, therefore, as I have said, the Subordinate Judge was right in holding that the judgment-debtors were the same for the purpose of Section 295, C.P.C. I have dealt with this question; but I think it is extremely doubtful whether it is competent for judgment-creditor No. 1 to raise the point at all now without having made a substantive application for the revision of the order made by the Subordinate Judge, and which is recited in the order now before this court as an order made by him on petition No. 761 of 1900.

(2.) AS regards the main point which has been argued in this revision petition, it is not altogether free from doubt and authorities on the point are not uniform. In that state of things I do not consider it necessary that I should make any order with regard to the costs of this petition, but the result will be the case will have to go back to the Subordinate Judge with the direction that he must deal with it on the footing that the petitioner is entitled to participate in the sale proceeds of items Nos. 1 and 2 as well as items Nos. 3 and 4.