JAMNADAS PARBHUDAS Vs. BAI SOONABAI

JUDGEMENT

(1.) This summons is taken out to determine the rights of various persons, who are decree- holders against the defendants, in property in the hands of this Court. Exhibit A to the affidavit of Ranchhordas Lallubhai dated June 29, 1931, gives particulars as to the dates and amounts of the decrees and the dates on which the parties made applications to this Court for the execution of their decrees.

(2.) Various contentions have been raised at the hearing of the summons as to the rights of the various creditors to get the money. The first question to be determined is the construction of Section 73 of the Civil Procedure Code, and for the purpose of arriving at the decision the following dates are material, The properties originally belonged to one Vicaji, and the plaintiff- mortgagee in this suit obtained a preliminary mortgage decree for sale on October 31, 1928, and a decree absolute on June 17, 1929. Defendant No. 7 was the second mortgagee. There are two lots of properties with which I am concerned and they are lots Nos. 1 and 4. Lot No. 4 was put up for sale by the Commissioner on March 17, 1930, and sold in enforcement of the decree absolute for sale. Rs. 16,600 were received by way of deposit on that day and the balance was received on April 17, 1930, Lot No. 1 was sold by the Commissioner on March 28, 1930, when the deposit was paid. The balance was paid on May 28, 1930,

(3.) It is contended by the applicants that on a proper construction of Section 73 the time before which applications for rateable distribution or execution should have been made to this Court, in order that the applicants might share in the surplus sale proceeds, is the time when the Court held the sale of the respective lots. The respondents, other than respondent No. 9, contend that the material time is the time when the sale proceeds are actually received by the Commissioner and not the time when the sale is first held. In support of their contention they rely on the opening words in Section 73 where it is stated that applications should be made before the assets are received by the Court. It is contended that in the same section two different times should not be presumed to have been prescribed unless the words clearly indicate that intention, It is also contended that the first clause is the governing clause while the later part of the section is only a proviso and therefore the words of the proviso could not be so read as to make the words therein conflicting with the operative part of the section itself.