NUR MOHAMMAD Vs. RAJARAM

JUDGEMENT

(1.) 1. The applicant, Nur Mohammad, held two decrees against one N.T. Power in Civil Suits Nos. 703 and 704 of 1930, respectively, for Rs. 57 and Rs. 28-9-6 He applied for execution and the property of the judgment-debtor was attached, in the decree of Civil Suit No. 704 of 1930. Most of the property valued at Rs. 98-4-0 was placed in charge of one Mohan Prasad, Superatdar. The non-applicants Rajaram and Shamji also held decrees against the same judgment-debtor and applied for execution, on 8th and 9th December 1932, praying for rateable distribution of the assets that may be realized in execution of the applicant's decree.

(2.) AS the Superatdar failed to produce the property of the judgment debtor which was entrusted to him, the execution Court issued warrants for attachment of his property to realize the value of the judgment-debtors' property. At the first warrant so issued, the Superatdar paid Rs. 40 to the applicant Nur Mohammad and avoided the attachment. Subsequently he deposited in Court or 9th December and 7th January respectively Rs. 30-11-6 and Rs. 27-8-6. By these three payments the total value of the judgment-debtor's property, viz. Rs. 98-4-0 I which was entrusted to the Superatdar, was realized and by its final order the lower Court distributed it rateably between the several decree-holders. It is against this order that the applicant has moved this Court in revision. Two contentions were put forward on behalf of the applicant. In the first place it was contended that Rs. 40 having been realized by the applicant from the Superatdar out of Court that amount could not be distributed rateably among the several decree-holders as it was not "held" by the executing Court within the meaning of Section 73, Civil P.C. This contention is prima facie unsound. The, payment to the applicant of Rs. 40 by the Superatdar was admittedly made in coercive process which was issued against, him by the executing Court. If the decree-holder had not accompanied the Mazkuri, the latter would have received the amount and deposited it in Court. The applicant received the amount constructively for the Court and therefore it must be held that it was an amount held by the Court executing the decree so as to make it liable for rateable distribution among the other creditors. It was recently held by Niyogi, A.J. C, in Atmaram v. Uderaj AIR 1933 Nag 347 that although the sale may be held in execution at the instance of one of the creditors any amount received from the judgment-debtor in Court under pressure of sale must sure for the benefit of all the execution creditors who have acquired a claim to a rateable distribution under Section 73, Civil P.C.