MOHANLAL LALCHAND Vs. BHIVRAJ DEVICHAND

JUDGEMENT

(1.) 1. In execution of a decree passed in favour of Hiralal and Pannalal in Civil Suit No. 44 of 1926 against one Bhau Gopal tney attached certain fields of the latter and further execution of the decree was transferred to the Collector. In 1929 the Collector sold Bhau Gopal's fields which were purchased in different lots by five persons, viz. Ganpat, Govinda, Kashiba, Maha-rajdin and Yado, for about Rs. 25,00. The Collector then, remitted the sale proceeds to the civil Court which paid the amount to Hiralal and Pannalal, the decree-holders. Later on the higher revenue authorities set aside the sales of Bbau Gopal's lands with the result that the revenue Court sent an intimation to the civil Court to refund the amount of the sale proceeds to the several purchasers Under Order 21, Rule 93, Civil P.C.

(2.) PROCEEDINGS were then started by the civil Court on the execution side to recover the amount from Hiralal and Pannalal. In these proceedings one house belonging to Hiralal and Pannalal was attached on 29th August 1930 but it was not put to sale because, as would be shown later, it was , attached and sold in execution of a decree which Jugraj and Devichand had obtained against Hiralal and Pannalal in the Bombay High Court which was later on transferred to Buldana for exedition. The house in question was attached in Jugaraj and Devichand's decree on 11th April 1931 and it was auctioned on 1st February 1933 for Rs. 3,700 and purchased by Mohanlal. This sale was confirmed on 25th March 1933.

(3.) THE counsel for the Bombay decree-holders as well as the disappointed purchasers frankly admitted that the order setting aside the sale of Mohanlal was unsustainable in law. Mr. Gandhe for the disappointed purchasers at the revenue auction sale however very vehemently contended that since the order for the refund of purchase money in favour of his clients was capable of execution as a decree Under Section 36, Civil P.C., they were entitled to put in their application for rateable distribution Under Section 73 ibid and that the lower Court's view to the contrary was wrong. In my opinion this contention is incorrect. Section 73, Civil P.C., only permits application for rateable distribution by persons who have made application to the Court for the execution of decrees for the payment of money and not by persons who have obtained orders for payment of money which are capable of being executed. The definition of decree as given in Section 2(2) does not include an order which is defined in Section 2(14). No authority has been cited before me in support of the contention that persons in Whose favour orders for payment of money are passed stand on the same footing as persons who have obtained decrees for the payment of money so as to entitle them to the benefit of Section 73, Civil P.C.