AYISA BIVI AMMAL Vs. JOKARA BIVI

JUDGEMENT

(1.) This Civil Miscellaneous Second Appeal is against an order of the District Judge of East Tanjore at Negapatam affirming an order of the District Munsif dismissing a petition for rateable distribution under Section 73 of the Civil P. C.. The appellant is the second defendant and the respondent is the plaintiff-decree- holder in O.S. No. 32 of 1918 on the file of the Court of the Additional District Munsif of Tiruvalur. In that suit a decree for partition was passed to the effect that the first defendant in the suit was to pay the plaintiff a certain sum of money and he was also direct-ed to pay the present appellant another sum of money. The relevant portion of the decree is as follows: This Court doth order and decree that the Ist defendant do pay to the plaintiff (for her share) the sum of Rs. 2,999-8-0 with interest thereon at the rate of 6 per cent, per annum from this date to the date of realization of the said sum and do also pay to the plaintiff the sum of Rs. 352-3-2 for her costs of this suit with interest thereon at the rate of 6 per cent, per annum from this date to the date of realisation. And this Court doth further order and decree that on payment by the 2nd defendant of the necessary Court-fees amounting to Rs. 175 due to Government, 1 defendant do pay to the 2nd defendant (for her share), the sum of Rs. 2,999-8-0 with interest thereon at the rate of 6 per cent, per annum from this date to the date of realisation of the said sum.

(2.) This decree was passed by the Additional District.Munsif of Tiruvalur. After the passing of the decree, the respondent here, viz., the plaintiff, got it transferred to thife Negapatam Court and in execution of the decree a certain amount has been realised. The present appellant filed an application under Section 73 of the Code of Civil Procedure claiming a share by way of rateable distribution and this petition has been dis-missed by both the Lower Courts. The learned District Judge held that the appellant "is not entitled to execution in the Negapatam Court without the decree having been transferred at her instance to the said Court."

(3.) Mr. Krishnaswami Aiyar on, behalf of the respondent has taken a preliminary objection that no second appeal lies in this case inasmuch as the contest here is between two rival decree-holders in which the judgment-debtor has no interest and the order appealed against does not therefore come under Section 47 of the Civil P. C.. In support of his contentiob he has relied upon three decisions, namely, Varada Ramaswami V/s. Vumma Venkataratnam (1921) 42 MLJ 473. Rajah of Karvetnagar V/s. Venkata Reddi (1915) ILR 39 M 570 : 29 MLJ 96 and Venkatakrishna Pattar V/s. Krishna Pattar , I think these cases are clearly distinguishable, in the case reported in Varada Ramaswami V/s. Vumma Venkataratnam (1921) 42 MLJ 473. the respondent "obtained a decree against a certain judgment-debtor, Mothivala Usman, in O.S. No. 776 of 1916 on the file of the Ellore District Munsif. In execution he attached certain moneys belonging to the judgment-debtor. Various other decree-holders who are appellants now before us applied for and obtained rateable distribution under Section 73 of the Code of Civil Procedure. The money was distributed. Oh appeal the order for rateable distribution was set aside by the Court. The respondent then applied for the return of the money which had been paid to the other decree-holders." One of the questions for decision in the case was whether the order for rateable distribution can be considered to be an order under Section 47 of the Civil P. C.. The learned Judges held that the order did not fall within Section 47 of the Code of Civil Procedure since it Vas passed on contest between rival decree-holders and no objection, to the rateable distribution was raised by the judgment-debtor and it was not suggested that his interests were directly or indirectly affected. The facts of the case show that the contest was not between parties to the suit in O.S. No. 776 of 1917 but between the decree-holder in that suit and various other decreeholders; clearly, therefore, the order did not fall within Section 47 as it did not settle any question arising between the parties to the suit in which the decree was passed. In Rajah of Karvetnagar V/s. Venkata Reddi (1915) ILR 39 M 570 : 29 MLJ 96. referred to Varada Ramaswami V/s. Vumma Venkataratnam (1921) 42 MLJ 473. their Lordships Seshagiri Aiyar and Kumaraswami Sastri, JJ. observe that orders passed under Section 73 of the Civil P. C. are appealable if they affect parties to the suit. The same view is also expressed in Venkatakrishna Pattar V/s. Krishna Pattar . If the parties to the proceedings in question are not parties to any common suit then the orders passed in such proceedings cannot obviously fall under Section 47 of the Civil P. C.. In the present case the question arising for decision is raised in execution between parties to the suit though the second defendant the decree being one passed in a partition suit is also in the position of a decree-holder like the plaintiff. I, therefore, overrule the preliminary objection.