RAMCHAND Vs. SHER SINGH

JUDGEMENT

(1.) This is a plaintiff's appeal and has arisen out of a suit for recovery of Rs. 1,510 together with interest. Both the Courts below dismissed it. The plaintiff- appellant and the defendant-respondent obtained two separate simple money decrees against one Kunwar Balbir Singh. The respondent applied for execution of his decree by attachment of the villages, Jarkhi and Nagla Raiya, belonging to the judgment-debtor. An attachment was made on 6 May 1927. The appellant also applied for execution of his decree, and obtained attachment of one of the two aforesaid villages, namely, village Jar-khi. The appellant made an application on 3 April 1928, to the Subordinate Judge of Agra, before whom the respondent had taken execution proceedings, that the sale proceeds be rateably applied in satisfaction of the two decrees. The Court granted the application. In the meantime the respondent's decree was transferred to the Collector for execution, as the villages sought to be sold were the judgment-debtor's ancestral properly. The order of the Court allowing rateable distribution to the appellant was not communicated to the Collector. It does not appear from the record whether the respondent was aware of this order. Village Jarkhi, was sold by the Collector and purchased by the respondent himself on 20 April 1923. He was allowed to set off the purchase money against the decretal amount then due to him. The respondent has since obtained the sale certificate and is in possession of village Jarkhi. The appellant instituted the suit, which has given rise to this appeal, on 19 April 1929, for the relief already referred to on the allegation that the defendant- respondent was liable to pay, in cash, the amount which would have fallen to the share of the appellant on a rateable distribution of the purchase money being made.

(2.) The Court of first instance dismissed the suit by a judgment which, we consider to be too summary, having regard to the nature of the controversy between the parties. The only ground on which the judgment proceeds is that the plaintiff-appellate did not apply for execution of his decree and that all he did was to make an application for rateable distribution. No attempt has been made before us to support the decree appealed from on that ground. It is not disputed that village Jarkhi had been attached at the instance of the appellant. The lower appellate Court has mentioned the fact that the appellant applied for execution of his decree and that, in pursuance of his application, an attachment of village Jarkhi was made. It is clear from these facts that the appellant's claim was not liable to be thrown out on the short ground that he had never applied for execution of his decree. The lower appellate Court (the Additional Subordinate Judge of Agra) held, in appeal by the plaintiff-appellant, that: the respondent purchased the property in good faith and he is not bound to pay any sum to plaintiff for rateable distribution nor has plaintiff obtained any lien on the property purchased by defendant.

(3.) No reference has been made to the relevant sections of the Civil Procedure Code or the case-law bearing on the point. In second appeal, before us the learned advocate for the appellant has relied on Section 73, Order 21, Rule 72, (Civil P.C), read with Schedule 3, Rule 9, Civil P.C, and Rule 988(2), of the Manual of the Revenue Department, U.P., Vol. 1, (Rules framed by the Local Government for sale of ancestral property). Reference has also been made to a number of decided cases which will be presently considered. Section 73 provides: Whore assets are held by a Court and more persons than one have, before the receipt of such, assets, made application to the Court for the execution of decrees for the payment of money passed against the same judgment-debtor and have not obtained satisfaction thereof, the assets, after deducting the costs of realization, shall be rateably distributed among all such persons,