HIMATMAL DEVCHAND Vs. ABDUL HAKKE

JUDGEMENT

(1.) This is a notice for rateable distribution under Section 73 of the Civil Procedure Code, 1908.

(2.) The plaintiff filed his suit in the Vadgaon Court and in due course obtained a decree for Rs. 2,084-10-0. The defendant is a railway servant and as such a public officer to whom the provisions of Section 60, Clause (i), of the Civil Procedure Code, apply. Other decrees were also obtained by other creditors in suits filed against the defendant. One such suit was filed by creditor No. 8 in 1934, another by creditor No. 3 in 1935. The other creditors appearing on this notice filed their suits in 1940-41. In execution of the decree obtained by the. plaintiff money is recovered from time to time from the railway company. Disputes have arisen between the parties because of the amendment of Section 60, Clause (i), in 1937 by Act IX of 1937. Before that amendment, under that claflse, the salary of a public servant, when not more than Rs. 40 a month, was wholly exempted from attachment. If it was more than Rs. 40 but below Rs. 80 the salary was exempted from attachment up to Rs. 40, and in all other cases a moiety of the salary was exempted from attachment. By that amendment two important alterations were made. One was to raise the unattachable limit from Rs. 40 to Rs. 100 and made half the salary above that limit attachable. Moreover a proviso was added to this clause under which the attachment under any one decree could continue for twenty-four months only, and if there was another creditor his attachment could be operative only after the expiration of twelve months under another decree. It is further expressly made clear that once a decree was thus executed for twenty-four months no further attachment could be made under that decree. By Section 3 of Act IX of 1937 it was further provided that the amendments made by Section 2 of that Act (which I have summarised above) shall not have any effect in respect of proceedings arising out of suits instituted before June 1, 1937. It must be noticed, therefore, that if a creditor had filed his suit before June 1, 1937, he could enforce his decree by attaching half the salary above Rs. 80 and moreover his right to continue execution was not stopped at the end of twenty-four months. By reason of the amendment, creditors who filed suits subsequently had only restricted rights as mentioned in the amended section.

(3.) Having regard to this amendment the plaintiff contends that the operation of Section 73 in favour of the other creditors is also curtailed. He concedes that creditors Nos. 3 and 8 have the same rights as he has. He submits that in considering the operation of Section 73 in respect of this debtor the creditors have to be divided into two groups : one group includes the plaintiff and creditors Nos. 3 and 8, and the other includes the remaining creditors. The other creditors contend that Section 60 regulates the rights of the attaching creditor against the judgment-debtor, and it stands unaffected by the provisions of s., 73. If the conditions of that section ( Section 73) are fulfilled, the Court has not to look at Section 60 to adjust the rights of the decree-holders applying for execution and claiming rateable distribution under Section 73. The corresponding sections in the previous Codes were enacted as stated in Hasoon Arm Begum V/s. Jawadoonissa Satoada Khandan (1878) I.L.R. 4 Cal. 29 and Komachi Kather V/s. Pakker (1896) I.L.R. 20 Mad. 107 to prevent unnecessary multiplicity of execution proceedings. In the normal course each judgment-creditor having obtained a decree has to apply in execution fatf attachment and sale of the property of the debtor. If such property is already under attachment and if an order for sale has been madei and thereafter another creditor applies to enforce his decree, he need not pass through the same process. It is with that object and to provide a cheap mode of execution that's 73 provides for equitable distribution of money held by the Court amongst creditors holding decrees against the same debtor, without se parate proceedings. In Bithal Das V/s. Nand Kishore (1900) I.L.R. 23 All. 106 Strachey C. J. observed as follows (p. 110) : Now the object of the section is twofold. The first object is to prevent unnecessary multiplicity of execution proceedings, to obviate, in a case where there are many decree-Tolders, each competent to execute his decree by attachment and sale of a particular property, the necessity of each and every one separately attaching and separately! selling that property. The other object is to secure an equitable administration of the property by placing all the decree-holders in the position I have described upon the same footing, and making the property rateably divisible among them, instead of allowing, one to exclude all the others merely because he happened to be the first who had attached and sold the property.