BISWAMBAR BISWAS Vs. APARNA CHARAN MOHARY

JUDGEMENT

(1.) This matier has been referred to a Full Bench by Jack and Khundkar, JJ. on the short point whether a Court acting under the provisions of Section 73, Civil P.C 1908, is entitled to inquire as to the validity of a decree put forward as the basis for claiming a share in the distribution of the assets of the judgment-debtor. The question we have to answer is whether that Court can go behind the decree and investigate the question whether that decree has been obtained by fraud or collusion. There are conflicting decisions upon this point. There are decisions of this Court which have laid it down that it is competent for a Court acting under the provisions of Section 73, Civil P. C, to go behind the decree. There is a number of decisions of other High Courts in the contrary sense. In order satisfactorily to determine the question it is necessary in the first place to examine the actual provisions of Section 73, Civil P.C. 1908. That;, section in Sub-section (1) provides that 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 decree 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.

(2.) Then follow certain provisions as to the method by which distribution is to be effected. It appears therefore that the conditions for rateable distribution are these: (1) the decree-holder claiming to share in the rateable distribution should have applied for execution of his decree to the Court by which the assets are held; (2) such application should be made prior to the receipt of the assets by the Court; (3) the assets of which a rateable distribution is claimed must be assets held by the Court; (4) the attaching creditor as well as the decree-holder claiming to participate in the assets should be holders of decrees for the payment of money; and (5) such decrees should have been obtained against the same judgment-debtor.

(3.) The primary condition to be fulfilled, by a person claiming to participate in the assets of the judgment-debtor, is that he must have a decree for the payment of money, which has been obtained by him against the same judgment-debtor. There are no words of qualification in Sub-section (1) as to the nature or validity in law of the decree which is being put forward. It appears therefore that all that is required, in order that a decree-holder snail establish his right to participate, is that he should bring forward a decree which he has obtained against the same judgment-debtor. Thereupon it becomes the duty of the Court by which the assets are held, to allow that decree-holder to participate in the distribution equally with the decree- holder who obtained the decree against the judgment-debtor upon which the execution proceedings were instituted. It has been argued by Mr. Das that if that is the position, a door is opened to a vast amount of fraudulent claims being put forward based on decrees obtained against the judgment-debtor by his benamidars, or friends, or other persons who have been found willing to lend themselves to a device for defrauding the bona fide judgment-creditor. It was upon the footing of some such argument or rather some such consideration, that the decision in the case in In re Sunder Das (1885) 11 Cal 42, was given by Sir Richard Garth who was then the Chief Justice of this Court. That decision was given in 1884, at a time when the Civil P. C. 1882 was in force, and the matter fell to be decided under Section 295 of that Code. We find in the judgment of Sir Richard Garth this passage: We think that the words decree holders or persons holding decrees for money against the same judgment-debtor in Section 295 must mean bona fide decree- holders against the judgment-debtor; and if in point of fact the decree which the present applicant holds is a sham decree, we think that the Court has a right to inquire into the question, and to exclude him from the distribution of assets. If this were not so, it is obvious that the section would give rise to a great deal of fraud, because any man, who is in difficulties, and likely to have executions issued against him by bona fide creditors, might always have a number of sham decrees in readiness against himself, to defeat the claim of any bona fide creditor who might put in an execution.