CHOKKALINGAM CHETTIAR Vs. MUTHUSWAMI GOUNDAN

JUDGEMENT

(1.) Mr. K.V. Ramachandra Aiyar has raised an interesting question in this case. Both sides admit that there is no decision dealing with this question and the arguments before me have proceeded mainly upon general considerations and a few rules of the Code.

(2.) At the outset, I pointed out to Mr. Ramachandra Aiyar that, though this Court has sometimes entertained revision petitions against orders under Section 73 of the Civil Procedure Code, it is only as an exception, because this is one of the class of cases where the aggrieved party has another remedy by way of suit. Mr. Ramachandra Aiyar contended that, if the point raised in the Civil Revision Petition is fairly clear and this Court can decide the matter once for all, it was scarcely necessary to drive the parties to another suit and I have accordingly heard him at some length. It may be that the learned Subordinate Judge was not justified in his remark that rateable distribution is a matter of equity (cf. however Thakurdas Motilal V/s. Joseph Iskender (1917) I.L.R. 44 Cal. 1072 at 1090) and it is true that the Court has got to deal with it on the terms of Section 73. Having had the benefit of the argument, I see no reason to differ in the result from the Lower Court's order. As the matter is one, of first impression I should like to indicate the reason for the above conclusion.

(3.) Section 73 of the Code provides that the application for rateable distribution must be made before ,the assets are received. Dealing with the persons to whom the money should be distributed it speaks of them as persons who " have not obtained satisfaction " of their decrees. The relevant facts in this case are that the petitioner, who was the decree-holder in O.S. No. 307 of 1927 on the file of the Sub-Court of Coimbatore, had obtained a decree against two sets of defendants and in execution thereof brought to sale three items of properties, all the sales taking place on 2nd April, 1930. The respondent is the decree-holder in O.S. No. 917 of 1928 on the file of the Court of the District Munsif of Tirupur. His right to rateable distribution is not disputed, but the point raised is as to the basis on which the proportion as between the two rival decree-holders is to be fixed. The difficulty in determining this question has arisen from the fact that the decree-holder in O.S.No. 917 of 1928 could claim rateable distribution only from out of the sale proceeds of item 1 and half of item 2, because it is only against the owner of so much of the property sold that he has obtained a decree. The learned Subordinate Judge has proceeded on the footing that in calculating the basis with reference to which the amount payable to the petitioner is to be fixed, he must treat his decree as satisfied to the extent of the proceeds realised by the sale of the properties belonging to the other judgment-debtor. It is stated in his order--and it has not been denied before me--that the sales of the other items had been confirmed before the date of his order, so that their sale proceeds were available to the decree-holder for satisfaction of his decree debt and if there was any delay in applying them in part satisfaction of his decree, it was merely by reason 6f the decree-holder not taking steps to draw the money.