BHATTOO SINGH Vs. RAGHUNANDAN PRASAD SINGH

JUDGEMENT

(1.) In this case two sets of decree-holders instituted proceedings in execution of decrees against one Tek Narain Singh, and an order was made for rateable distribution of the assets which should be realized. One of the decree-holders named Bhattoo Singh brought certain property to sale in execution of his decree with the result that the property was knocked down for Rs. 920, which would in the ordinary course have been available for rateable distribution among the creditors after deduction of the costs of execution; but within the statutory period the judgment-debtor paid his dues under Order 21, Rule 89, and secured a release of the property which had been sold. The amount deposited for the benefit of the decree-holder was Rs. 814. The other decree-holders, who had already obtained an order for rateable distribution, applied for rateable distribution of this amount; and their prayer was allowed by the Munsif.

(2.) We are asked to revise the order of the Munsif on the ground that he had no jurisdiction to make rateable distribution of money deposited under Order 21, Rule 89. The learned advocate for the petitioner relies in the main upon the decision in Hari Sana V/s. Fazlar Rahman (1913) 40 Cal 619, wherein it was held that although money paid into Court under Order 21, Rule 89, Civil P.C., might be regarded as assets held by a Court within the meaning of Section 73, Civil P.C., it was not available for rateable distribution because it was specially paid for the benefit of a particular decree-holder, and the Court had no jurisdiction to utilize the money for any other purpose. Phillips, J., of the Madras High Court took a similar view in Murugappa Chettiar V/s. Palaniyappa Chetty (1917) 42 IC 507 basing his decision on the ground that if the sum paid for the benefit of the decree-holder under Order 21, Rule 89 could be deemed to be held by a Court, the sum paid as a percentage of the purchase money for the benefit of the auction-purchaser would equally be assets liable to rateable distribution.

(3.) The learned advocate points out that the view that a payment under Order 21, Rule 89 must be regarded as definitely earmarked for the specific creditor who is conducting the execution case finds support also from observations made in other cases. Thus in Narayan V/s. Amgauda AIR 1921 Bom 169 Sir Norman Macleod, discussing the opinion of the most eminent of commentators on the law of Civil Procedure, who considered that money paid into Court under Rule 39 should be liable to rateable distribution, remarked that it appeared to him that when it was expressly provided that the money should be paid in for a particular purpose such money could not be treated as assets held by a Court. The question of whether money paid under Order 21, Rule 89 should be treated as available for rateable distribution did not actually arise in that case; and it may be remarked that the Calcutta High Court regarded the money as assets held by the Court, but specially car-marked for the creditor who controlled the proceedings in execution in which it was realized.