RADHAKISAN LAXMINARAYAN TOSHNIVAL Vs. UTTAMCHAND MOTILAL AGARWALE

JUDGEMENT

(1.) THE plaintiff, Radhakisan and the defendants, Uttamchand and the Shri Laxminarayan Sansthan, of which Uttamchand is the wahiwatdar, each obtained decrees against one Gopalrao. Certain fields were attached in execution and the decrees were transferred for execution to the Collector. While proceedings were pending before the Collector, the fields were sold by the Tahsildar under the Berar Land Revenue Code for arrears of land revenue. After payment of the arrears, Rs. 2654-5-0 remained in the hands of the Tahsildar. The defendant Uttamchand filed another application for execution in which he attached this sum which was remitted by the Tahsildar to the executing Court. On 21st July 1936, Uttamchand drew out Rupees 2253-7-0 on his own account and on 28th July 1936 he drew out the remaining Rs. 400-14-0 on behalf of the Sansthan. The plaintiff alleged that this sum of Rs. 2654-5-0 should have been rateably distributed amongst the three of them and that if this had been done he would have been entitled to Rs. 1700, and this was what he claimed in the suit. The trial Court held that the plaintiff's case against each of the two defendants was distinct, that the suit was bad for multifariousness, and that the plaintiff must choose against which of the defendants he was going to proceed. It appears to me that both defendants were proper parties to the suit, as there could be no proper adjudication of what was due to each decree-holder on rateable distribution in the absence of one of them. The plaintiff however submitted to that order and chose to proceed against defendant 1 alone from whom he contended he was entitled to recover Rs. 1554-4-0.

(2.) IF the plaintiff was not entitled to rateable distribution, then he had no cause of action when the defendants withdrew the sale proceeds. It appears to me however that the plaintiff was entitled to rateable distribution, for he had applied for execution of his decree and that application for execution was still pending. As was held in Zumbarlal Chhotelal v. Sitaram A.I.R. 1937 Nag.80 the word "assets" in Section 73, Civil P.C., includes the sale proceeds of the property attached when it is sold for arrears of land revenue and such property is therefore available for rateable distribution under that section. The suit was therefore one Under Section 73(2) of the Code and it is well settled, and not now disputed, that to such a suit Article 62, Limitation Act, applies. The present suit is prima facie barred by limitation because it was not brought until 14th November 1939, more than three years after the sale proceeds had been Withdrawn by the defendant.