CHELLA NARASIAH Vs. SONTAN OBBAYYA

JUDGEMENT

(1.) I will assume that the District Munsif was right in holding that the respondent s application before him, dated 18th January 1911 was an execution petition, satisfying the requirements of Order XXI Rule 11 Clause (1).

(2.) It seems to me however that the District Munsif could not in that case make an order for rateable distribution under Section 73 of the Civil Procedure Code.

(3.) He has omitted to notice that an order for rateable distribution under that section can be made only in favour of one who prior to the receipt of the assets in Court has applied to the Court for execution of his decree. In this case the assets were received in Court (at the instance of the present petitioners), on the 9th January 1911. The application for rateable distribution by the present respondent was not made till the 18th January 1911. See Krishnasankar v. Chandrasankhar (1880) I.L.R. 5 B. 198 Be joy Singh Dhuduria v. Hukum Chand (1902) I.L.R. 29 C. 548, 553. Durga Churn Rai Chowdhury v. Manomani Dasi (1888) I.L.R. 15 C. 771 These decisions were given under the Act of 1882 but the Act of 1908 has made no material alteration on this point.