DHIRENDRA RAO KRISHNARAO GUNZIKAR Vs. VIRBHADRAPPA GHOSMANI

JUDGEMENT

(1.) This is a revision application, in which we are asked to review an order of the First Class Subordinate Judge of Dharwar, allowing rateable distribution of the proceeds of a sale in execution at the suit of the applicant, amongst the various opponents jointly with the applicant. The material facts are that on September 7, 1930, the applicant obtained a decree for Rs. 6,000 odd in a suit in the Court of the First Class Subordinate Judge, Dharwar, against the defendant in the suit, and on November 20, 1931, filed a darkhast asking for the sale of immovable properly of the judgment-debtor, and the darkhast was sent to the Collector for execution. On July 21,1932, the applicant got leave to purchase the property at the Court sale and to set off the purchase money against the decretal amount. On September 3, 1932, the sale took place and realized substantially the exact amount due upon the applicant's decree. It appears that at the date of the sale there were darkhasts outstanding which had been filed in the Court of the Second Class Subordinate Judge of Dharwar in favour of various opponents, and opponents Nos. 2 to 6 applied, on September 6, 1932, to the First Class Subordinate Judge of Dharwar for rateable distribution of the sale proceeds, and that distribution was ordered. The applicant now applies in revision against the order. He says that in terms of Section 73, Civil Procedure Code, the Judge had no power to order rateable distribution because applications to him to enforce the decrees in the Second Class Subordinate Judge's Court had not been made before the moneys were received, that is, before September 3, 1932.

(2.) A preliminary point was taken by the applicant that no rateable distribution could be ordered because of the direction that he be allowed to set off the amount of his decree against the purchase money, such order being said to be proceeding within Section 63(2), Civil Procedure Code. That order was made under the power conferred by Order XXI, Rule 72(2), Civil Procedure Code and the order is, in my opinion, mere machinery, which does not affect the rights of third parties, Apart from the order allowing set off, the decree-holder, who purchased, would have to bring the purchase money into Court and then he would be paid, as far as the moneys went, the amount due to him on his decree. To avoid this procedure the Court can allow set off, but all that the order allowing such set off means is that the decree-holder can exercise his right by setting off the amount of his decree against that portion of the proceeds of sale to which he is entitled. He cannot set off against a portion of the proceeds of sale which belongs to other parties. That was the view of this Court in Navajbhavdu Patil V/s. Totaram Govind Patil A.I.R. 1931 Bom. 252 Ind. Rul. (1931) Bom. 385 and it seems to me to be clearly the right view. The substantial point which arises on this application is as to the construction of Secs.63 and 73, Civil Procedure Code. Section 63 provides: Where property not in the custody of any Court is under attachment in execution of decrees of more Courts than one, the Court which shall receive or realise such property and shall determine any claim thereto, and objection to the attachment thereof shall be the Court of highest grade, or, where there is no difference in grade between such Courts, the Court under whose decree the property was first attached.

(3.) The effect of that section in the present case is to impose upon the First Class Subordinate Judge at Dharwar the duty of realising the property, receiving the proceeds and determining the claims thereto; and amongst those claims to be determined are the claims of persons who have obtained attachments in execution of the decrees of inferior Court of rateable distribution of the proceeds of the sale. But Section 63 does not determine the principle on which the Court is to act in determining the claims; it only lays down which Court is to decide the question. In determining whether rateable distribution should be allowed or not the Court has to look at Section 73, which provides: Where 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.